Horizontal Falls Adventure Tours Pty Ltd v Thomas

Horizontal Falls Adventure Tours Pty Ltd (the "Respondent") has brought proceedings against Kaye Chaloner (the "Applicant") in the Federal Circuit Court of Australia, seeking a declaration that the Applicant's website constitutes passing off under the Trade Practices Act 1974 (Cth) and an injunction to restrain the Applicant from engaging in the alleged passing off. The Applicant filed a notice of motion on 10 June 2009, seeking to stay the proceedings on the basis that the Applicant's website does not infringe the Respondent's trade mark or cause confusion in the marketplace. The court was required to determine whether the Applicant's website constituted passing off under the Trade Practices Act 1974 (Cth). In particular, the court had to consider whether the Applicant's website was likely to cause confusion in the marketplace and whether it amounted to misrepresentation by the Applicant that the Applicant's services were those of the Respondent.

The court found that the Applicant's website did not constitute passing off under the Trade Practices Act 1974 (Cth). The court noted that the Applicant's website did not contain any representations that the Applicant's services were those of the Respondent. Rather, the website was a comparison site that listed the services offered by a range of operators, including the Respondent. The court also found that the Applicant's website did not cause confusion in the marketplace. The court held that the website was a legitimate comparison site and that consumers were likely to understand that the Applicant's website was not an official site of the Respondent. Accordingly, the court dismissed the notice of motion filed by the Applicant.