JBS Australia Pty Ltd v Australian Meat Group Pty Ltd
[2017] FCA 1421
•30 November 2017
FEDERAL COURT OF AUSTRALIA
JBS Australia Pty Ltd v Australian Meat Group Pty Ltd [2017] FCA 1421
File number(s): QUD 1163 of 2015 Judge(s): GREENWOOD J Date of judgment: 30 November 2017 Catchwords: INTELLECTUAL PROPERTY – consideration of the question of whether the conduct of the respondent engages acts of infringement of the registered trade marks of the applicant for the purposes of s 120 of the Trade Marks Act 1995 (Cth) (the “Act”) on the footing that the respondent is said to have used as a trade mark a sign that is substantially identical with the registered trade marks in relation to goods for which the trade marks are registered
INTELLECTUAL PROPERTY – consideration of whether the conduct of the respondent engages infringement of the applicant’s trade marks on the footing that the respondent is said to have used as a trade mark a sign that is deceptively similar to the registered trade marks in relation to goods for which the trade marks are registered
INTELLECTUAL PROPERTY – consideration of the test to be applied in determining whether the conduct of the respondent engages use as a trade mark of a sign deceptively similar to the trade marks of the applicant in relation to goods for which the marks are registered having regard to s 10 of the Act – consideration of the principles to be applied
Legislation: Trade Marks Act 1995 (Cth), ss 10, 20, 120 Cases cited: Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641
Berlei Hestia Industries Ltd v Bali Co Inc (1973) 129 CLR 353
CA Henschke & Co. v Rosemount Estates Pty Ltd (2000) 52 IPR 42
Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45
Crazy Ron’s v Mobileworld (2004) 61 IPR 212
Jafferjee v Scarlett (1937) 57 CLR 115
Jones v Dunkel (1959) 101 CLR 298
Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCAFC 174
Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365
Southern Cross Refrigerating Co. v Toowoomba Foundry Pty Ltd (1954) 91 CLR 529
The Shell Co. of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407
Date of hearing: 26, 27, 28 July 2016 Date of last submissions: 28 July 2016 Registry: Queensland Division: General Division National Practice Area: Intellectual Property Sub-area: Trade Marks Category: Catchwords Number of paragraphs: 287 Counsel for the Applicant: Mr D Shavin QC and Mr A M Musgrave Solicitor for the Applicant: Bennett & Philp Lawyers Counsel for the Respondent: Mr E J C Heerey QC and Mr B Gardiner Solicitor for the Respondent: Holding Redlich ORDERS
QUD 1163 of 2015 BETWEEN: JBS AUSTRALIA PTY LTD (ACN 011 062 338)
Applicant
AND: AUSTRALIAN MEAT GROUP PTY LTD (ACN 168 396 316)
Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
30 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The parties submit proposed orders to be made arising out of the reasons for judgment published today, within seven days.
2.The costs of and incidental to the proceedings up to and including the making of orders as contemplated by Order 1 are reserved.
3.The parties file and serve within 14 days short submissions in relation to the question of the costs of and incidental to the proceedings to date.
4.The matter be listed for review at a date to be nominated by the Court in order to determine the procedural steps to be taken in relation to the determination of the separate question of damages or an account of profits.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with the question of whether the respondent, Australian Meat Group Pty Ltd (“AMG”), has infringed and, if so and not restrained by injunction, whether AMG will continue to infringe two trade marks of the applicant, JBS Australia Pty Limited (“JBS”), by using, in the course of trade in goods for which each trade mark is registered, a trade mark said to be substantially identical with or deceptively similar to each of the JBS trade marks in suit.
JBS is the owner of the trade mark depicted below (TM 515268), registered under the provisions of the Trade Marks Act 1995 (Cth) (the “TM Act”) having a priority date of 20 July 1989 (the “device mark”).
According to the “Details” of the registration, the “image” consists of a “stylised” map of Australia “on ribbon”. The device mark is registered in Class 29 for the following goods: “meat and meat products including boneless meat, chilled bone‑in meat, frozen boneless meat, frozen bone‑in meat”.
JBS is also the owner of registered trade mark (TM 1719465) for the mark “AMH” (the “AMH mark”) having a priority date of 4 September 2015. It too is registered under the TM Act in Class 29 although the range of goods is more expansive than the description of goods for which the device mark is registered. Nevertheless, the goods include, among other things, “meat; prepared meat; meat products; meat jellies; meat extracts; and offal”.
Notwithstanding the different description of goods in each registration, the applicant has used each trade mark (so far as the evidence in these proceedings is concerned) almost exclusively, and extensively, in connection with its trade, over time, in processed meat and meat products (rather than, for example, “fish, poultry, game”).
There is a reasonably long history of use, by the applicant, of the device mark and the AMH mark at various functional levels in the sequence of transactions characterised by the acquisition of live animals, the slaughter (called kill and boning) of those animals, the processing and packaging of meat into primal cuts and the supply of primal cuts (and other meat products) to intermediaries (often wholesalers), retailers and consumers. I will describe this as the “supply chain”. Set out below are two images which show the way in which the AMH device mark is applied to packaging containing meat products generally described as “whole primal cuts”. The images are to be found at “NLM‑4” to the affidavit of Nicole Louise Murdoch, Vol 1, Tab 14 at p 34, and “GJB‑1” to the affidavit of Grant John Braddock, Vol 1, Tab 12 at p 15.
See also the images depicted at [29], [68], [74], [76] (as to boxes) and [87] of these reasons.
There is also a significant reputation subsisting in each trade mark, in JBS, in the eyes of members of those cohorts operating at some (perhaps all) functional levels of the supply chain in meat processing such as wholesalers, competitors of JBS, other intermediaries, retailers and others. The question of whether that reputation subsists at the functional level of the supply chain where a consumer engages with retail sellers of meat (butcher shops, supermarkets) is a matter contested by the respondent.
Otherwise, the respondent says that the reputation, developed over time, in the two trade marks, having regard to the volume and value of trade in meat products by JBS, in connection with its use of the two trade marks, is sufficiently pronounced or prominent, as a badge of origin, that this case falls, analogically, into the same class of case as the Maltesers authority (Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCAFC 174; (2009) 84 IPR 12) with the result that JBS is, in effect, a “victim of its own success”: T, p 50, lns 41‑46. The respondent’s essential point in making that analogical comparison is to say that it follows that no person of “ordinary intelligence and memory” engaging with the impugned marks of AMG could be “caused to wonder” whether the products endorsed with the AMG trade marks come from JBS. Thus, AMG says that there is no “real, tangible danger” of confusion occurring: Southern Cross Refrigerating Co. v Toowoomba Foundry Pty Ltd (1954) 91 CLR 529 at 595 per Kitto J. Put simply, AMG says that in determining the question of contended deceptive similarity, a judgment as to the likelihood of deception or confusion is “a very practical one” and the probability of deception or confusion must be “finite and non‑trivial”: Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365, French J at [43] and [49]. As to the reputation subsisting in the AMH trade marks, AMG “[does not] dispute that there is a strong reputation amongst the wholesalers, and in the export markets, and for supermarkets, and for independent butchers for the AMH brand”: T, p 333, lns 18‑20. See also T, p 334, lns 17‑18; lns 40‑46; T, p 336, lns 1‑45. The respondent says it relies upon that reputation “because [it] weighs against the chances of an imperfect recollection … in the sense that the better known the mark is, the less logical reason there is to attribute some imperfect memory of that mark”: T, p 333, lns 22‑26.
On the other hand, however, the respondent also says that the applicant’s former name until October 2007 was Australia Meat Holdings Pty Limited and from 2008 when that name ceased to be used, the applicant ceased to promote and emphasise the name or “AMH” or the AMH device mark in connection with the applicant’s trade in meat products with the result that its reputation in AMH and the device mark diminished over time in favour of other brands or names such as “Swift” or “JBS” itself, thus suggesting that a retail consumer engaging with the impugned marks could not be caused to wonder in the sense relevant to the tests for confusion.
The applicant says that, in substance, these two contentions are inherently inconsistent and that AMG is engaging in approbation and reprobation and the respondent “cannot have it both ways”. Either the AMH trade marks enjoy a reputation at the relevant functional level of the market so as to be relevant to the tests of whether conduct engages s 120(1) and s 120(2) of the TM Act, or they do not.
More fundamentally, the respondent also says that parties engaging with the respondent and its trade marks in both the domestic and export markets are in no doubt at all about who they are dealing with when engaging with the respondent’s impugned trade marks.
It should be noted that no industry participant opposed the registration of either of the two AMH trade marks in suit and in these proceedings no cross‑claim is made by the respondent for expungement of the marks. Validity is not in issue in these proceedings.
It is convenient to now identify the impugned marks of AMG. On 8 April 2014, AMG lodged an application under the TM Act to register the device trade mark depicted below (Application No. 1616230) in Classes 29, 35, 39 and 40 (the “AMG device mark”).
JBS has opposed the registration of the AMG device mark on grounds engaging ss 43, 43, 44, 58, 60 and 62A of the TM Act. The opposition proceedings are presently stayed by operation of orders of this Court made on 11 February 2016.
AMG has also applied for two other trade marks both of which incorporate the device mark. On 3 March 2016, AMG lodged Application No. 1756459 (the “AMG Premium Angus Beef mark”) and Application No. 1756462 (the “AMG Southern Ranges Platinum mark”) depicted below.
These marks at [15] are better illustrated later in these reasons in the depiction of the lids on AMG boxes being Exhibits 23 and 22 respectively: see [135] and [134].
Apart from the service mark categories, each of the above two trade marks are sought to be registered in connection with Class 29 goods described in this way: “Meat products, food products, meat, beef; beef products; lamb; lamb products; sausages; offal; meat extracts; prepared meals consisting wholly or substantially wholly of meat”.
AMG uses the device mark and the two marks depicted at [15] of these reasons in the course of its trade in meat products. It also uses “AMG” in the course of marketing its products. The mark “AMG” is an acronym for the words “Australian Meat Group”. AMG also uses a version of the device mark in the course of marketing its meat products. That version, as depicted below, consists of the stylised outline of a map of Australia with AMG within the map (as depicted at [13] of these reasons), in green, with a green backing or field bearing the words “Australian Meat Group”. The southern part of the map overlays the green field.
The image at [18] of these reasons forms part of Annexure “DBJ‑1” to the affidavit of Ms Danielle Belinda Jepson (Vol 1, Tab 13). Ms Jepson says that on 25 October 2015 she visited the IGA Store at East Brisbane and looked at the meat section within the store. She saw a display of bulk beef contained within AMG branded bags, for sale. She took the photograph at “DBJ‑1” and purchased some of the meat.
It should also be noted that on 1 December 2014, AMG commenced publication of its website at amg.com.org.
As to the history of the applicant, JBS was incorporated on 27 July 1990 as Parley Investments Pty Ltd (“Parley”). Parley changed its name to Australia Meat Holdings Pty Limited on 29 May 1991 (“AMHPL”). On 17 July 2007, the shares in AMHPL were acquired by an entity which resulted in AMHPL becoming part of what is sufficiently described as the “JBS Group”. On 15 October 2007, AMHPL changed its name to Swift Australia Pty Ltd (“Swift”). On 18 January 2011, the corporation changed its name to JBS Australia Pty Limited, no doubt, to better reflect its relationship with the JBS Group (the ultimate holding company of which is JBS SA).
The evidence of the applicant
Mr Eastwood
As to JBS and its operations, Mr Hugh Brent Eastwood is the Chief Executive Officer (CEO and a Director) of JBS. Mr Eastwood has been the CEO of JBS since 2012. Mr Eastwood has been working in the “meat industry” in Australia since 1989 and first began working in the industry in 1983 in New Zealand. Since 1991, he has been working for companies now owned by the JBS Group. In 1991, he began working for the D.R. Johnston Group which, in the 1990s, became part of the JBS Group. Since 1991, Mr Eastwood has discharged senior roles within the JBS Group. In the period 2000 to 2007, he was the General Manager of the “AMH Trading Divisions” (which then included D.R. Johnston) when JBS was operating as AMHPL. From 1998 to 2000, he was the CEO of the ConAgra Trade Group. He was President of Global Trading for the JBS Group in the United States with Swift Beef Company and JBS Carriers Inc. (from 2007 to 2009), and Head of Sales for the US Beef Division from 2009 to 2011. He was CEO for JBS Northern from January 2012 to September 2012 and from then, CEO of JBS. He is responsible for all of the JBS operations in Australia and New Zealand.
Mr Eastwood says that during his period with JBS Group and his time in the meat industry, he has continuously engaged with suppliers, customers of JBS including distributors of its products, and consumers of meat products. He says that although JBS does not deal directly with retail consumers, JBS personnel are required to have a very good understanding of how the industry operates at all functional levels including retail sales. He says that he regularly visits, as part of his role, clients, butcher shops and other meat retail outlets. He says he has observed over many years transactional practices within the meat industry at the wholesale and retail level. Mr Eastwood says that Australia Meat Holdings Pty Limited was known by the acronym “AMH” for at least 16 years (during the period May 1991 to at least July 2007) by people within the company and by industry outsiders. He says that during the period May 1991 to July 2007 it was unusual to hear or see the use of the full company name other than in a formal setting. He also says this (para 12, Eastwood affidavit, Vol 1, Tab 11):
It is also commonplace to hear reference to AMH today, even though JBS has been through two name changes since being known as Australia Meat Holdings. I have no doubt that even today a reference to AMH in the industry would be understood as a reference to JBS. JBS is the legal name of the company but our brands are a connection to our consumers.
As to its operations, Mr Eastwood says this (at paras 15 and 17 of Vol 1, Tab 11):
15Today, JBS is the largest meat processing company in Australia, it wholesales meat products for sale in Australia and exports Australian meat to over 80 countries worldwide. It has a number of business divisions including Northern, Southern, Swift & Company Trade Group and D R Johnston Group. Other companies within the JBS Group operate 30 retail butcher stores in New South Wales and Queensland and own the Hans and Primo brands of smallgoods and other businesses.
…
17In the [meat] industry, livestock are processed by abattoirs and are referred to as a kill. I estimate JBS’ current share of the four Australian state eastern states beef kill (excluding service kill, where JBS does not purchase the livestock) would be approximately 20%.
Mr Eastwood says that the “AMH Brand” which he describes as the “AMH name” and the device mark (which incorporates AMH) is the “longest standing brand” of JBS and “always was and still is the dominant brand” used by JBS on its meat products: para 18, Vol 1, Tab 11. Mr Eastwood says that JBS has developed other brands for its meat products because over the last two decades brands have become “critically important”: para 20, Vol 1, Tab 11. Nevertheless, he says that the “largest quantity” of beef produced by JBS is produced under the “AMH Brand”. He says JBS continues to market beef which carries the AMH Brand within Australia and overseas and “[m]ore beef is packed under the AMH Brand than any other JBS brand alone” (para 21, Vol 1, Tab 11).
As to the use of the AMH Brand (as he describes it) Mr Eastwood says this at para 22, Vol 1, Tab 11:
The AMH Brand is printed on packaging in which the beef is placed at abattoirs. It is also printed on cartons which are used to transport the beef. It also appears in other marketing. This beef is also usually referred to in business documents as “AMH”, for example AMH was used on product lists. I am certain that people within the industry including suppliers, distributors and retailer consumers would be aware of the AMH Brand because the brand is on the packaging that contains the beef including on the cartons the meat is transported within and is used in other advertising within the industry.
Mr De Luca
Mr Bradley John De Luca is the “Marketing Executive” employed by the applicant. He has held that position since September 2013. He has worked in the meat production industry since 2010. In 2010, he was retained as the Marketing and Communications Advisor for the Australian Agricultural Company (“AA Co”) which is a competitor of JBS in the sale of processed branded meat products. AA Co is also a potential supplier of livestock to JBS. AA Co operates feedlots and farms comprising around seven million hectares of land in Queensland and the Northern Territory. It produces branded beef products such as “1824 Premium Beef”, “Darling Downs Wagyu” and “Master Kobe”.
As to JBS and its brands, Mr De Luca says the following things and in doing so he uses the expression “AMH brand” by which he says he means a composite phrase capturing the name AMH, the “AMH plain word” and the “AMH trade mark”. Mr De Luca, in referring to the “AMH trade mark” is referring to the device mark depicted at Annexure “BJDL‑1” which is a photograph of primal cuts in a plastic bag (cryovaced) bearing the trade mark in the terms depicted at [2] of these reasons.
An example of the plastic packaging used as described by Mr De Luca is Exhibit 17 and two photographs of Exhibit 17 are set out below.
Mr De Luca says that the AMH trade mark is considered by JBS to be “one of the most recognisable and respected beef brands both in Australia and internationally”: para 12, Vol 2, Tab 16. JBS has a daily beef processing capacity of approximately 9,550 head of cattle at the processing plants at Beef City (west of Toowoomba), Dinmore, Rockhampton, Townsville, Riverina, Brooklyn, Devonport, Longford and Scone. He says that due to the cuts of meat produced from beef cattle and the particular specifications for beef marketed under the various beef brands used by JBS, approximately 20% of the carcass slaughtered at the Riverina, Dinmore, Rockhampton, Townsville and Beef City facilities is packed into a carton which has a lid, on which the AMH trade mark (device mark) is printed. He says that 20% is the minimum percentage of meat product sold under the AMH trade mark as other cuts of meat from beef (and offal), are also packed into cartons with lids bearing the AMH trade mark.
All boneless beef cuts produced at Townsville, Rockhampton and Dinmore are also packed into bags which have the AMH trade mark printed on them (the “AMH Bags”). He says that JBS packs five brands of beef into AMH Bags. The five brands under which JBS sells meat product so bagged are “AMH”, “AMH White”, “Friboi”, “Swift Premium” and “Royal”. He says that the Friboi, Swift Premium and Royal brands are all co‑branded with the AMH trade mark and are packed into cartons with lids printed with the Friboi, Swift Premium and Royal brands. The beef within the cartons, in each case, is sealed in AMH Bags. In addition, where appropriate, inserts are placed inside the bag to indicate the co‑branding.
Mr De Luca says that the “AMH brand” is used in the supply chain of beef including the packaging of beef products under the AMH brand and the advertising and sale of beef products using the AMH brand. He says that, in his experience, it is “not uncommon for livestock suppliers, customers and the general public” (ie: non‑meat industry people) to refer to the JBS plants, earlier mentioned, as being “an AMH plant”: para 15, Vol 2, Tab 16. He says that the AMH brand is only used on beef products. He says that JBS has various beef brands with particular specifications which apply to the particular beef product. Mr De Luca identifies eight domestic beef brands (excluding the AMH brand) and the corresponding specifications applicable to product sold under each of those brands (for example, “Swift Premium”, “Friboi”, “King Island Beef” and “Riverina Beef”, among others): para 20, Vol 2, Tab 16.
Notwithstanding these differential brands and specifications, Mr De Luca says that all beef produced by JBS is eligible to be packed under the AMH brand but only grain fed beef can be packaged under the brand known as “AMH White”. He also says this at para 21, Vol 2, Tab 16:
… The majority of beef produced by JBS is not eligible to be packed under some of the other brands (because it does not meet that brand specification) and so the AMH brand is the most heavily used brand by JBS on beef products.
Mr De Luca addresses aspects of packaging and sales more fully at paras 26 to 30 of his affidavit (Vol 2, Tab 16). He says that meat produced by JBS is packaged into individual bags, placed in cardboard cartons and palletised. The cardboard cartons have a lid which is printed with a brand owned by JBS and the lid is sealed to the carton. The lid used corresponds to the brand of meat sold. The lid is printed with the trade mark for that brand which ordinarily corresponds to the brand printed on the bags within the cartons. Sometimes, the bag is not printed with a trade mark. Sometimes, the bag is printed with a different trade mark to the trade mark on the lid. The beef within cartons which have an AMH lid is either sealed in an AMH bag; or contained in a bag that is not sealed; or placed on a plastic liner that is not printed with a trade mark; or sealed in a bag that is not an AMH bag, although this is a rare occurrence.
However, Mr De Luca says that since 2009 the beef within cartons from the JBS owned Dinmore, Townsville and Rockhampton plants which have Swift Premium, Royal or Friboi printed lids, is sealed in an AMH bag. He says that these bags are then placed in cartons with lids which display the Swift Premium, Royal or Friboi brands. At Annexure “BJDL‑3”, Mr De Luca annexes a copy of photographs of AMH lids used by JBS since 2008 which exhibit the AMH device mark.
At paras 31 to 33 of his affidavit (Vol 2, Tab 16), Mr De Luca sets out a process of analysis he caused to be undertaken so as to identify these things:
(a)How many AMH bags (containing meat) have been sold to domestic and export customers between 2008 and 2015?
(b)How many AMH lids to cartons containing meat (which include the AMH and AMH White brands) have been sold to domestic and export customers between 2008 and 2015?
(c)What is the weight and value of those sales to JBS at the wholesale level?
Mr De Luca annexes a confidential schedule, “BJDL‑4”, which sets out answers to those three questions based on the research he caused to be undertaken. In his fifth affidavit (contained in the Supplementary Court Book at Tab 6), Mr De Luca sets out more thoroughly and more comprehensively the steps taken and the methodology deployed in bringing into existence the spreadsheet data at “BJDL‑4” of his first affidavit (Vol 2, Tab 16). It is not necessary to set out the detail of that material in these reasons.
Although the data in the schedule is confidential, the applicant has extracted, from the schedule, data not broken down between domestic and export sales but which nevertheless shows for the period 2008 to 2015 the number of AMH branded bags (containing meat), the volume of sales in kilograms and the value of those sales in Australian dollars. It also sets out the number of cartons with AMH branded lids, the volume of sales in kilograms and the value of sales in Australian dollars. This data is related exclusively to material that bore the AMH trade mark. The statistics are these:
Year
Number of AMH Branded Bag
Volume of Sales (Kgs)
Value of Sales (AUD$)
2008
29,780,080
127,878,680
$760,509,094
2009
29,018,253
130,801,926
$719,411,557
2010
27,418,401
120,591,150
$683,397,169
2011
30,498,278
129,457,288
$744,780,468
2012
32,402,982
128,922,064
$747,911,769
2013
35,615,019
141,348,479
$836,389,152
2014
33,258,793
132,745,538
$927,115,095
2015
33,607,087
136,377,948
$1,139,814,741
Total
251,598,892
1,048,123,073
$6,559,329,045
Year
Number of Cartons with AMH Branded Lids
Volume of Sales (Kgs)
Value of Sales (AUD$)
2008
9,432,749
216,990,130
$971,754,357
2009
9,918,426
230,381,759
$956,599,041
2010
10,350,523
239,904,377
$1,003,792,278
2011
12,102,157
280,996,018
$1,205,953,796
2012
11,591,777
271,587,067
$1,184,160,864
2013
13,003,937
289,786,646
$1,361,417,273
2014
14,249,914
325,564,224
$1,812,817,798
2015
13,914,513
317,910,871
$2,086,614,830
Total
94,563,996
2,173,521,092
$10,585,110,237
So, as to the cartons, 94.563 million cartons of beef were sold by JBS between 2008 and 2015 bearing the AMH device mark depicted at [29] of these reasons representing 2.173 billion kilograms of beef sold in AMH marked cartons generating sales of $10.585 billion.
As to the AMH branded bags, 251.598 million bags of beef product were sold bearing the AMH device mark depicted at [29] of these reasons between 2008 and 2015 representing 1.048 billion kilograms of beef so sold, generating sales of $6.559 billion. As to the 251.598 million bags of beef product so sold as described, the cartons containing those bags may have been labelled with the AMH device mark or the brands Friboi, Royal or Swift Premium.
It is a rare case indeed where a trade mark owner (whether of a registered or common law trade mark) is able to demonstrate use of a trade mark (which is unchallenged as to validity) on 251.598 million items of packaging (in this case plastic packaging) and 94.563 million items of other packaging (in this case cardboard packaging) in connection with products in the volumes (by kilograms) in the schedules generating sales of $6.559 billion and $10.585 billion, respectively, in sales of goods the subject of (in this case) each registration of the trade marks in suit.
Although it is said by AMG that JBS has done little since October 2007 when AMHPL changed its corporate name to Swift Australia Pty Ltd to promote the device mark or the AMH mark, Mr De Luca describes in his affidavit (Vol 2, Tab 16) at paras 34 to 62 a range of promotional activities at, in or on which reference is made to the AMH device mark including: community events and trade shows since 2010; billboard advertising between 14 July 2014 and 10 August 2014 displaying an advertisement before 78,600 viewers in the catchment with, on average, 5.1 views; 317 employment advertisements placed on the “Seek website” since 12 February 2015 with “a detailed view count of 165,882; a newspaper advertisement (size 10 x 8) in the Queensland Country Life publication on 27 June 2013 which had a circulation for that week of approximately 30,000 recipients; signage displayed on one of the JBS Carriers trailers which, since May 2013 when the device mark was applied to the trailer, has travelled 360,762 kilometres.
Apart from these things, JBS operates the websites jbssa.com.au and amh.com.au. JBS has operated the jbssa.com.au website since 2013. In January 2014, Mr De Luca updated it. The new website went live on 28 January 2014. The website displays the AMH device mark on the “beef brands” page. Between January 2014 and 17 March 2016 that page had 21,171 views of which 13,872 were from browsers located in Australia. The homepage contains a promotional video which displays the AMH trade mark at moments between 11 different time settings. The device mark is displayed, in all, for 41 seconds across the various time periods. The video has been viewed 5,649 times.
The amh.com.au website does not display to the viewer as a webpage and an enquirer is redirected to the jbssa website.
In terms of the marketing expenditure, Mr De Luca sets out some confidential domestic marketing expenditure data for the Northern division which bears a relationship to the AMH device mark.
In Mr De Luca’s fourth affidavit (Vol 5, Tab 39), he gives evidence at paras 5 to 25 of the steps taken by JBS to market its beef products overseas in connection with a range of brands including the AMH device mark and “AMH” mark. He says that beef product bearing the marks is advertised and sold, or promotional activities which exhibit the mark are undertaken overseas, by JBS or by its distributors in a range of ways. It is not necessary to set out those activities in any detail. These things, however, should be noted. Mr De Luca says that based on his many trips to the various marketplaces in which JBS customers operate, including Taiwan, Indonesia, Hong Kong, the United States, Japan and China, he has observed how those marketplaces display meat product for sale. The brand is displayed endorsed on packaging exhibited at retail facilities and also at the “food service level (restaurant)”, to consumers. Annexure “BJDL‑37” contains a series of photographs exhibiting the way in which primal cuts are displayed in cabinets in packaging bearing the AMH trade marks among many other images of meat displayed for sale. Some clear examples exhibiting the AMH device mark are the images at pp 21, 24, 25, 26, 27 and 86. The remaining images show many examples of primal cuts in packaging marked with the trade marks of the competitors of JBS. Some of the images show portion cuts of meat displayed for sale some of which bear the AMH device mark. Mr De Luca gives evidence of JBS activities at trade shows and industry events to promote its marks including the AMH marks.
If there be any doubt about the promotion of the AMH trade marks of JBS in these forums, see the photographs at “BJDL–39” at pp 97, 98, 99, 101, 102, 104, 106, and 108. See also the data at para 18 of Mr De Luca’s affidavit (Vol 5, Tab 39). JBS representatives regularly travel to customer sites and deliver presentations about the company, its products and its brands. As to the use of the AMH device mark in these presentations, see the following: the presentation at “BJDL‑40” at pp 149 and 150; the presentation at “BJDL‑41” at p 187; and “BJDL‑42” at pp 193 and 194.
Apart from these matters, Mr De Luca also gave evidence about the trend towards differentiation in the number and variety of beef products. As mentioned earlier, Mr De Luca identified eight different brands each with its particular specification (for example, grain fed beef, days of feeding; grass fed, etc). He says that over the last six years, through branding, there has been a “rapid and exponential increase” in the number and variety of beef products developed by competitors in the upstream supply side of the supply chain in both the domestic market and supply by Australian processors and exporter intermediaries into the export market.
Mr De Luca says that 2.2% of all beef consumed in Australia is “displayed to retail consumers in whole primal form in a retail environment” by which he means that the meat is displayed “as a full cut in the form it leaves the processor and in its original packaging” and thus the meat is “not portion controlled” and the “whole cut” is offered for sale as shown in Annexure “BJDL‑1”: paras 76 and 77, Vol 2, Tab 16. Mr De Luca explains in his affidavit the basis for his calculation having regard to the different types of retail outlet (such as the “Super Butcher” retail outlets) and the data contained in the Meat and Livestock Australia 2011 report entitled “Red Meat Market Report”.
At para 77, (“BJDL‑23”), Mr De Luca sets out an assessment, in spreadsheet form, for the period 2008 to 2015 of the postulated retail value of AMH beef (based on an estimate of 2.2% of the annual volume of AMH, Friboi, Swift Premium and Royal branded beef product (contained in AMH branded bags)), presented, by retailers, to retail consumers in whole primal form. He assumes a retail sales price per kilogram of either $10.00/kg or $20.00/kg or $30.00/kg. He applies a variance of plus or minus 2%. The data in the spreadsheet is confidential. Nevertheless, it shows the number of AMH bags branded with the device mark represented by the 2.2% share; the volume in kilograms; the percentage share of the relevant retailer of meat sold in primal form; the variance; and the retail value of sales on each of the three price postulates. Without disclosing the data in these reasons, it is fair to say that even though the percentage (2.2%) is small, the volumes are nevertheless significant and the retail sales value across the three postulates is also significant.
At para 78 of his affidavit (Vol 2, Tab 16), Mr De Luca annexes (as “BJDL‑24”) a series of photographs he took on 22 March 2016 of meat (which appear to be primal cuts) in bags bearing the AMH device mark at retail outlets around Brisbane and Ipswich which he attended on that day. The outlets were these: Cutting Edge Meats, Everton Park; Joe’s Butcher, Wacol; (two photographs); Village Meats, Toowong (two photographs); Hillmans, Taringa (10 photographs); Clayfield Markets, Clayfield (two photographs). The photographs show primal cuts such as “full rib fillet premium”, “sirloin yearling grain fed”, “eye fillet”, “whole rib fillet” etc. A number of the primal cuts packaged in this way also contain other trade marks reflecting the mark of the seller and other marks. Some bags also are marked with a sticker “Swift Premium” and on some occasions that sticker partially overlays the AMH device mark. In any event, there can be very little doubt that meat products in the form of whole primal cuts exhibiting the AMH device mark (among other marks) are displayed in cabinets for purchase by retail consumers, in some retail outlets.
Mr De Luca also annexes as “BJDL‑25” to his affidavit (Vol 2, Tab 16) a photograph taken on 14 July 2013 of AMH beef offered for sale in bags marked with the AMH device mark in a Woolworths store. Also, in the course of giving evidence Mr De Luca identified two cartons used by JBS in which it supplies meat product. The first is a carton which exhibits the trade mark “Swift Australia” (Exhibit 11) and the second is a carton which exhibits the trade mark “Royal” (Exhibit 12). Images of those exhibits are illustrated below.
Mr Tancred
Mr Henry James Tancred is and has been since 2007, the Group General Manager of D. R. Johnston (“DRJ”). Mr Tancred says this in his affidavit at Vol 2, Tab 17:
DRJ is a division of JBS. The division operates as a separate business and keeps its own books of account. It orders meat products from JBS but also places orders with other producers, that is, competitors of JBS. DRJ negotiates over the price of the meat products it acquires and then on‑sells the meat to its customers. Mr Tancred’s contextual background should be noted. He has been involved in the meat industry for a long time (he says “all of my life”). His grandfather with other family members formed the company “The Tancred Bros.”(the “family company”). Mr Tancred’s father also worked in the family company. Mr Tancred began working in the meat industry in December 1981 in the family company, with his father and his uncle. The family company operated a wholesale meat business selling meat products both domestically and into the export market. Mr Tancred recalls events in the 1980s concerning the formation of AMHPL. Once that company was formed, Mr Tancred’s father left the family company and, I infer, joined AMHPL. At this time the family company was known as the “Northern Meat Group”.
From 1986 to 2002, Mr Tancred was the Manager responsible for wholesale sale of pork, veal and lamb. Some of these meat products were traded into Taiwan, Korea and Japan. In 1992 the company moved to the Cannon Hill Abattoir and conducted its operations from that facility although the facilities in Innisfail and Katherine continued to operate. In 1996 or 1997 Tancred family members entered into a Joint Venture with the Packer Group of companies in relation to the Rockhampton Abattoir facilities. The Joint Venture was called “Consolidated Meat Group”. It traded until approximately 2002 when the Tancred family interests were acquired by the “Packers” and “Teys”.
In September 2002, Mr Tancred accepted a position with AMHPL to manage DRJ. He became Manager of the Brisbane office on 28 January 2003 and Group General Manager on 25 September 2007.
In 2007, JBS took over the export operations of DRJ. DRJ continued to develop the domestic operations. In 2007, 50% to 60% of the sales of meat products by DRJ represented meat sourced from AMHPL.
Mr Tancred says that DRJ now trades in over 50 brands of meat including the full range of cuts and trimmings of beef, veal, lamb and mutton. DRJ is the exclusive distributor of products supplied under the JBS brands Friboi, Swift Premium and Riverina Angus. DRJ is a non‑exclusive distributor of JBS meat products bearing the AMH trade marks or name. Mr Tancred annexes to his affidavit at “HJT‑1”, a copy of a price list dated 2 December 2013 used by DRJ for Sydney which shows the products offered or distributed by DRJ to its customers. That annexure also exhibits a price list for DRJ Sydney dated 21 March 2016. Mr Tancred says that the price lists identify the acronyms for the brands for meat products distributed by DRJ. He says the “acronyms are broken down to three letters for the brands and that lets the customers know what brands are being offered for sale”. The price list for 2 December 2013 consists of a series of columns which show the particular cut of meat or meat product, an acronym identifying the source of the product, and the prices. So, for example, meat products or cuts are described as: Insides, Inside Cap Off, Inside Denuded, Knuckle, Strips, Rump, Cube Roll, Outsides, Fillets, T‑Bone, Frozen Beef, Beef Trim Fresh and many other product names. The price list is distributed by DRJ to its Sydney industry buyers which include butchers, food processors and other intermediaries. The source of the product is identified by a three letter acronym for ease of reference in ordering. Examples, among many, are these (leaving aside the prices which, for present purposes, are not relevant although the prices are, of course, highly important to the buyer):
Product
Source of Product
YG STRIP 3.6‑5.0kg
AMH
YG STRIP 5+
AMH
YG STRIP 3.6‑5.0kg
PRI
YG STRIP 4.5+
PRI
YG STRIPLOIN 4‑5kg & 5kg+
PJ
YG STRIP 4.5+
TEY
YG STRIP 4.5+ MSA
PRI
YG STRIP 6+
TEY
S STRIPLOIN 3.6kg+
AMH
S STRIPLOIN 5.0 UP
AMH
S STRIPLOIN 3.2‑4.5kg
TEY
S STRIPLOIN 0‑5kg
TEY
S STRIPLOIN 5.0 UP
TEY
S GF STRIPLOIN
MDH
S GF STRIPLOIN
AMH
BEEF STRIPLOIN 2.7‑3.6kg
TAS
BEEF STRIPLOIN 3.6‑5kg
AMH/TAS
The price list of 21 March 2016 also sets out products by reference to acronyms in the same way as illustrated at [58] of these reasons. Mr Eastwood says that DRJ has “abbreviated [the] name for ease of identifying the brand” and by so doing is “encouraging [the] customers to order by reference to those three letter acronyms: T, p 80, lns 22‑47; T, p 81, lns 1‑8.
Mr Tancred says that part of his role with DRJ and his work in the last 35 years with other companies in the meat industry, has involved working as a salesman selling meat to customers. He says that in the meat industry those sales have mostly occurred by telephone. From 1981 to 2007 it was part of Mr Tancred’s role to sell meat directly to customers. He says he has made thousands of sales by telephone. Since becoming Group General Manager in 2007, he has been responsible for supervising all of DRJ’s salesmen. From time to time he still fills the role of a salesman especially when absences due to sickness occur. He says that in the meat industry it is critical to move a lot of meat product. He says that typically managers will describe meat products sourced from JBS and supplied by that company under the AMH brand, as AMH product. References are made to a customer’s “large order for AMH”. He says that managers working for him will say to him: “We need more of AMH” or we need more of whatever the brand being purchased that day might be. If it’s AMH product it will be described as “AMH”.
Although it will be necessary to return to a more precise description of the supply chain process, it should be noted that DRJ is a “distributor”. It purchases meat from processors and distributes the meat to its customers which may include other distributors, butchers, cutting rooms and small supermarkets. Although the customer can be of any size, DRJ does not “portion control” the meat nor does it sell meat products to the general public, in the ordinary course. Between 2010 and 22 March 2016, DRJ has supplied meat to over 6,000 customers. Mr Eastwood uses different terms to describe, in substance, the same functional processes. He says that the price lists referred to by Mr Tancred at “HJT‑1” would be typical of DRJ’s price lists published in other States. He says that the price lists are distributed to retailers and businesses that further process meat (distributors), cutting rooms and manufacturers and the like. Mr Eastwood says that the price lists would probably not be distributed to “wholesalers so much” because DRJ is itself a wholesaler: T, p 79, lns 13‑46.
Mr Tancred says that he uses “AMH” to refer to both the company previously known as Australia Meat Holdings and as a reference to the meat supplied and distributed under the AMH trade mark by JBS. When Mr Tancred refers to the AMH trade mark he is referring to the AMH device mark as depicted at [29] of these reasons and illustrated at “HJT‑2” of Mr Tancred’s affidavit. He also says that he has been “part of countless conversations where my customers, or my colleagues, refer to AMH”. He says that when he hears other people in the industry refer to AMH he understands them to mean either the company JBS or AMH meat. He says that it is the context within which the term is used by customers and colleagues which enables him to determine whether AMH is a reference to the company or AMH meat products.
Mr Tancred also says that he has many conversations with livestock producers. JBS acquires livestock in a number of ways which include either through JBS buyers directly or through agents. Livestock acquired by JBS are sent directly to an abattoir (processing facility) for slaughter and boning. Mr Tancred says that in conversations with livestock producers, he is often asked questions like this: “what kind of money does AMH have for bullocks this week” or “what does AMH have on the grid” (which is a reference to a price list for product). Mr Tancred says he has conversations like this, on average, monthly. In that context, he understands AMH to be a reference to the company, JBS. He says it is more common to hear “AMH” spoken than “JBS”. He says that he has also had many conversations with customers where it is clear to him from the context that the customers when saying “AMH” are referring to meat product and ordering meat, and he understands the customers to be referring to AMH branded meat product. He says, for example, that a customer, Dunton South, from Bidvest in Morningside often places an order for “A‑trd 1.8 AMH” and he understands that order to be an order for AMH meat product. He says that he has had many conversations with customers ordering in this way.
Mr Tancred says that customers tell him that it is the consistency of the AMH meat products that causes them to re‑order AMH meat.
As to the business method, Mr Tancred says that DRJ distributes product lists to its clients approximately once a week, that is, “at least [on] a weekly basis for as long as DRJ has operated”: para 36, Vol 2, Tab 17. The price list sets out the brand of meat on offer, the cut of meat and the prices, in table form. The form of the list might vary depending upon the customer. The trade marks for each brand of product are not always displayed on the price list. The list dated 1 February 2016 is Annexure “HJT‑3”. It shows 15 beef products (70 days grain fed) much along the lines of the product cuts earlier described, all offered under the Friboi brand name, and the prices. It also shows 12 beef products (grain fed) all offered under the Swift Premium brand, and the prices. It shows other products, the relevant brands and prices. It also shows eight beef products all offered under the reference AMH, and the prices.
As to AMH meat, Mr Tancred says that when DRJ distributes AMH meat, it distributes it in cartons with lids bearing the AMH trade mark (that is, the device mark at [2] and [29] of these reasons). He says that the meat inside those cartons is always in bags although the bags may be sealed or unsealed, depending upon the particular meat product. Sealed bags bear the AMH trade mark (depicted at [29] of these reasons). For meat products sold under the brands Friboi, Swift Premium and Royal, the brand is printed on the lid of the carton but the meat within those cartons is contained in a bag marked with the AMH device mark. Sometimes the sealed bags in the Friboi, Swift Premium and Royal cartons also contain an “insert” identifying the Friboi, Swift Premium and Royal brand, although this is not always the case.
However, he says it is always the case that when any meat is processed and packaged by JBS and placed in a sealed bag, that bag has the AMH device mark printed on it. The photographs at “HJT‑4”, pp 36 and 37, show examples of meat products (sold under the Swift Premium brand), contained in bags marked with the AMH device mark with a Swift Premium (insert), being meat within a Swift Premium carton. Page 38 shows the Swift Premium carton. Page 39 shows AMH bags marked with the AMH device mark without an insert and p 41 shows the “Royal” carton.
The two images at pp 36 and 37 described above are shown below.
Mr Tancred, on 14 March 2016, caused a search to be conducted of DRJ’s business records to determine the quantity and price of meat distributed by DRJ in AMH cartons between 2002 and 2015. On 17 March 2016, he caused a search to be made of DRJ’s business records to determine the quantity and price of meat products purchased under the brands Friboi, Swift Premium and Royal as those boxes all contain meat contained in bags endorsed with the AMH device mark. Confidential Annexure “HJT‑5” shows the results of those two searches The data is, for all the obvious reasons, confidential and sensitive. However, it is enough to say that the volumes and the cost and sales values across the period of the years contained in the tables, are simply enormous. DRJ describes itself as Australia’s leading domestic wholesale and meat trading business: “HJT‑8”. The DRJ website illustrates seven device brands for beef products supplied by DRJ and the particular characteristics of those products supplied under each brand. As to the AMH device mark, DRJ simply puts it this way on its website: “AMH is the leading brand of beef in the world. Customers, the world over, recognize the commitment to quality and consistency that the AMH brand represents”: “HJT‑8”.
Mr Tatt
Mr Brendan William Tatt is the “Commercial Manager Beef Northern” for JBS. He has held that position since December 2015. Between October 2011 and October 2013, he was the “Domestic Beef Manager” for JBS and from November 2013 to December 2015, he was the “Sales Manager Beef Northern” for JBS. Mr Tatt grew up in the country. His father is a cattle auctioneer. In April 2002, Mr Tatt started working as an international trader in beef and lamb products for Swift and Company Trade Group and he held that role until November 2006 when he took up the position of “Sales and Marketing Export Sales” with responsibility for markets including the United States, Canada, Russia and the Philippines. Mr Tatt explains aspects of the supply chain, among other things, in his affidavit at Vol 2, Tab 15.
JBS is a meat producer, that is to say, a producer of processed meat. JBS does not operate cattle properties or rear cattle although it does operate five beef feedlots. In Australia, JBS operates nine beef abattoirs, those five beef feedlots and 14 distribution centres. It processes through its facilities cattle purchased from livestock producers and feedlot operators. JBS sells meat in wholesale quantities to “distributors” trading in the domestic and export markets. It does not sell “portion controlled meat”. It sells meat to “customers” who order in “wholesale quantities” which involves a number of cartons and thousands of kilograms. Thus, JBS acquires livestock from growers through its own buyers or contractors and agents. It processes the cattle through the kill and bone process at the relevant facilities. The processed meat (normally whole primal cuts) is sold at the wholesale functional level to a distributor who may (or may not) seek to “add value to the product” by portion controlling the meat into particular sequences of individual portions. The distributor might elect to sell bulk meat to another distributor or sell the meat directly to retail outlets or to end‑users. The meat may pass through a number of distributors or intermediaries before it reaches a retail consumer. Mr Tatt says that often, although not always, meat may be portioned controlled as it passes through this chain of distribution.
Mr Tatt says that in this supply chain, distributors (those who do and do not portion control), retail traders (butchers, restaurants) and retail consumers are exposed to the “AMH name” and the “AMH trade mark” by which he means the AMH device mark, having regard to the illustration at “BWT‑2” (Vol 2, Tab 15). He says that the AMH brand has a “significant and strong reputation” in these cohorts. He says that because of his employment since 2002 he has come to know that until 2007 JBS was known as Australia Meat Holdings which was abbreviated to AMH. He says he abbreviated the name to AMH when engaging with others either in writing or when speaking and referring to the company and “[a]lmost without exception” people who spoke to him concerning the company’s operations used the acronym AMH: para 22, Vol 2, Tab 15. He says that up to 2007 he heard people use the acronym AMH “daily”. He also says that based on his experience in the meat industry and as a result of engaging in discussions with meat industry participants (both internal and external to JBS), JBS is “still often referred to as AMH” due to the reputation developed in AMH up to 2007: para 23, Vol 2, Tab 15. Mr Tatt refers to a conversation on 8 March 2016 as an example of one industry participant who told him that his people continue to refer to “your company” as AMH. Mr Tatt says that the AMH trade mark is still the “most recognised brand” in what he describes as the “full entirety of what JBS does” and it remains a “big portion of the JBS business”: para 25, Vol 2, Tab 15.
Mr Tatt also gave evidence about the method by which trades take place between JBS and its customers for the sale of beef products under the AMH brand. Orders are placed by a customer over the telephone or mobile phone or by sending JBS an email requesting certain categories and quantities of products. JBS assigns a salesperson (a “seller”) to each customer to directly look after its account with that customer. The customer places orders with that seller directly. When orders are placed by phone, the customer will call the JBS nominated customer seller. Alternatively, an email may be sent to that seller. New customers are also allocated a seller and if the new customer is big enough, JBS will conduct a site visit. Mr Tatt says that he has been involved in thousands of such telephone calls with customers. He says that “whenever” AMH branded meat products are referred to, the customer “always” uses the letters AMH: para 28, Vol 2, Tab 15. Mr Tatt says he recalls many such calls. Email orders also refer to the acronym “AMH” as the method of identification of the relevant meat product when the customer wants to order AMH branded meat products. As to that, Mr Tatt, at “BWT‑2” (Vol 2, Tab 15), attaches a number of emails by which orders are placed or discussed for AMH meat products, by reference to “AMH”: see Woolworths Order 14 February 2013 at p 17; Order 7 October 2009 (export) at p 18; Coles Order 29 July 2011 at p 22; Coles Purchase Order Request, 29 July 2011 concerning nine beef products which recites: “Supplier Name: Swift (AMH)”, p 23. Other product orders identify the product of the applicant by using other differentiating brand names such as “Royal”: see p 28.
Mr Tatt says that retail end consumers can purchase meat in portion controlled packaging or in full primal form. When meat is cut into portions by operators of cutting rooms, butchers and retail outlets, the meat is rarely re‑packaged in its original packaging. Mr Tatt says that in his experience, when meat is displayed for sale to the end‑retail customer in “full primal form” (such as a rump cut of meat), the meat is kept in its original bag marked with the AMH device mark. The illustration at “BWT‑1” is set out below:
As to market structure, Mr Tatt says that there are approximately 10 major meat distributors (not including processors) in the industry representing about 80% of market demand. The remaining 20% is comprised of “a significant number of smaller distributors”. Mr Tatt estimates that nationwide the number of distributors “would be well over 100” and he says he has confidence in his assessment because JBS sells its products at the wholesale functional level. Some of those distributors supply meat products in more than one State. Some have a distribution network in many States and thus have a “national footprint”: para 36, Vol 2, Tab 15.
As to some examples of current lids and boxes used by JBS marked with the AMH device mark, see the images set out below which are, respectively, a chilled meat carton lid and an AMH White, grain fed beef product (“BWT‑4”, pp 43 and 46):
As already mentioned, Mr Tatt gave evidence about the industry method of buying and selling beef products either through telephone calls or by email exchanges. Mr Tancred gave further evidence about that matter in his affidavit at Vol 4, Tab 29. He says that on 27 May 2016, he caused the business records of DRJ to be examined so as to identify copies of emails concerning the sale and purchase of beef products which illustrate a use of “AMG” in connection with beef products. At “HJT‑9”, Mr Tancred attaches a number of emails identified as a result of that search. Mr Tancred does not explain the emails. However, in large part the emails speak for themselves. At “HJT‑9”, p 4, Mr Tancred attaches an email from Mr Warwick Scanlan at Oakdale Meat Company Pty Ltd (“Oakdale”) dated 16 November 2015. The company address is in Dandenong, Victoria. The email sets out the “Oakdale offer” for “current and available stocks” of beef products and the prices for those products “delivered into eastern states (ADD 30c WA)”. The email then sets out a range of beef products: blade, chuck, cube roll, rump, shortloin, striploin, tenderloin and other beef products. Under each heading for those products particular sub‑descriptions are set out. For example, cube roll has the sub‑description “YG CUBE ROLL – PIECES”. Shortloin has the sub‑description “YG SHORTLOIN O‑RIB”. At p 4, the offer sets out “TRADED PRODUCT” and that box contains 11 items describing product by reference to the supplier such as MC, AMG, Teys and AMH. Ten of the products are set out in the following way leaving aside the product number:
TRADED PRODUCT
CARTONS
PRICE
MC HERD BEEF CHEEK
20
$9.50
MC HERD BEEF TONGUE SWISS CUT FRZ
60
$9.20
AMG A RUMP 5KG +
13
$7.20
GREENHAMS A CUBE 2.2 – 3.1KG
48
$11.50
AMG OVINE RACKS
31
$10.20
AMG BEEF TONGUE
48
$8.50
TEYS UNGRADED CUBS
48
$13.50
TEYS BEEF STRIPLOIN
48
$9.20
TEYS S CUBE ROLL 7 RIB
12
$17.50
AMH PR CUBE ROLL 5 – RIB GRAIN FED
42
$20.00
Based on the email, I infer that Oakdale is a distributor operating at that functional level of the market. The applicant says that this email is an illustration of someone offering a number of cuts of meat, in the “TRADED PRODUCT” category, by reference to the different trade marks as badges of origin, or badges of source, of those products at the prices and volumes identified by Oakdale, and they do so through the use of acronyms: MC, AMG, TEYS, AMH. At “HJT‑9”, p 6, there is an email from Mr David O’Hanlon of Midfield Trading Pty Ltd (“Midfield”). That company also has a Victorian address. The email, dated 16 November 2015, is under the subject “Buy now for XMAS!!!”. The email says that Midfield has been told that two of its biggest suppliers will be closing at the end of November for a number of reasons. Mr O’Hanlon encourages the persons to whom the email has been distributed (presumably clients of Midfield) to purchase now.
Again, the 31 products the subject of the offer in the email are identified by reference to acronyms or abbreviated names. The email, in effect, has three columns. One describes the product in quite specific terms. The second identifies the price and the third identifies the corresponding source of the beef product. As a person casts an eye across the columns in the email, these acronyms appear in the following order: AMH, Swift, Swift, AMH, Midfield, AMH, Hunter Valley, Harvey, Swift, Harvey, AMH, AMG, AMH, Teys, Swift, Midfield, Union Station, Vintage, Midfield, Major, Swift, Union Station, AMG, Kilcoy, Swift, Kilcoy, Bindaree and Harvey (three of the products are identified by the number 246 rather than a supplier brand name or acronym).
The applicant places emphasis upon price lists which identify beef products by acronyms and, in particular, the acronyms AMH and AMG. The applicant says that having regard to AMH’s reputation, a customer may become confused and be likely to place an order with AMG when they are intending to place an order with AMH. More particularly, if they see AMG alone and act in reliance upon their imperfect recollection of AMH, the respondent’s use of AMG is sufficient to be deceptively similar to the AMH trade marks, or likely to cause confusion with those trade marks, because such a person brings to the transaction, when seeing or hearing AMG, an imperfect cognitive recollection of AMH. That, in itself, is said to be enough.
The applicant concedes that that proposition might be “less compelling” if the person placing the order can see AMH and AMG “next to one another” but if “it’s there by itself”, the proposition that use by the respondent of the sign or trade mark AMG is deceptively similar to the trade mark “AMH” (which the applicant describes as the AMH word mark), is said to be “very powerful” because the only difference between the two is that in one case the acronym ends with “H” which stands for “Holdings” and, in the other, “G” which stands for “Group”, in circumstances where the relevant customer brings an imperfect recollection of AMH to the oral or email purchase transaction or, in the relevant circumstances, a consumer transaction: T, p 30, lns 12‑46; T, p 31, lns 1‑27. The applicant also says that a person bringing an imperfect recollection of the AMH device mark to a purchase transaction might be caused to wonder whether the AMG device mark is simply a more “modern” version of what might be said to be a device mark of AMH which “looks a bit old fashioned”: T, p 31, lns 35‑37.
In other words, such a person would bring an imperfect recollection of this:
when engaging in trade in beef products with this:
The applicant takes the same position in relation to use of AMG and says that where the applicant has a reputation in the trade mark AMH, an imperfect recollection of which is said to be brought by such a person to a transaction in which that person engages with the mark AMG in relation to meat products, such a person will be caused to wonder whether AMG is really AMH or a version of or connected with in some fashion, AMH.
In illustrating the two device marks in this way at [82], I am not suggesting, plainly enough, that the test for determining whether the respondent’s use of its mark is deceptively similar to the device mark in suit is a side‑by‑side comparison. Plainly it is not. Nor is a side‑by‑side comparison the relevant approach to determining deceptive similarity in relation to AMH and AMG as “word marks”.
On the other hand, a side‑by‑side comparison is the correct approach to determining whether the respondent’s use of the device mark or the AMG word mark is substantially identical with the trade marks in suit.
Ms Jepson and Ms Murdoch
As to the question of contended infringement, apart from the evidence already mentioned, JBS relies upon the affidavit of Ms Jepson (also already mentioned; Vol 1, Tab 13). Ms Jepson illustrates at “DBJ‑1” whole primal cuts seen on 25 October 2015 at an IGA store at East Brisbane. Ms Jepson purchased the “whole budget beef rib fillet” illustrated in the photograph, that day. JBS also relies upon the affidavit of Ms Nicole Louise Murdoch at Vol 1, Tab 14. Ms Murdoch is an employee of the solicitors for JBS. On 13 January 2016, she visited an IGA store at Brighton in Queensland and examined the meat section in the store. She saw bulk beef displayed for sale. She saw bulk beef within an AMG branded bag for sale bearing a version of the AMG device mark in the same terms as illustrated at [18] of these reasons. She took a photograph of it: Annexure “NLM‑1”. On 13 March 2016, she attended an IGA store at Ascot in Brisbane. She examined the meat section. She saw meat bearing the AMH device mark for sale. There were a number of packets of bulk beef for sale. However, the only branded bulk beef on sale was bulk meat in bags marked with the AMH device mark. Ms Murdoch took a number of photographs of the display cabinets containing bulk meat for sale: “NLM‑2”.
An example of one image from “NLM‑2” is illustrated below.
On 19 March 2016, she visited a butcher shop in Clayfield, Brisbane and examined the meat section within the store. She noted seven to eight whole fillets for sale within bags marked with the AMH device mark. One bag contained an insert for the Swift Premium brand. She took a series of photographs of the displays of bagged meat.
On 20 March 2016, Ms Murdoch visited the SuperButcher store at Eagle Farm, Brisbane and examined the meat section within the store. She noted five or six whole rumps for sale within bags marked with the AMH device mark. The bags contained an insert for the Royal brand. She took photographs of the displays of meat and close‑up images of a number of bags of bulk meat.
On 14 March 2016, Ms Murdoch conducted a Google search online under the search term “bulk meat AMH price”. The search revealed 10.4 million results. She says that the search “JBS bulk AMH price” revealed 18.6 million results. She says that the search results also identified “an alternative search … to be ‘JBS bulk AMG price’”: para 7. Ms Murdoch describes at paras 9 to 13 other Google searches she undertook. On 14 March 2016, a search under the term “meat AMH price” returned 356,000 results and gave an alternative search of “meat AMG price”. On 15 March 2016, Ms Murdoch attempted to conduct a Google search for the words “AMG meatworks”. The Google search engine attempted to “autocomplete” the search term to “amh meatworks”. It did not attempt to autocomplete the search term to “amg meatworks”.
Ms Murdoch also conducted searches of the domain names amg.com.au, australianmeatgroup.com and australianmeatgroup.com.au. The respondent is the registered licensee for each domain name.
At para 12 of her affidavit Ms Murdoch annexes as “NLM‑10”, a copy of a print-out of a web page at amg.com.au/brands which displays the brands of meat products supplied by the respondent by reference to the boxes each of which exhibit the AMG device mark although the oral evidence of the respondent’s witnesses was that the respondent did not use the terms “white” box or “brown” box. The images from the webpage are displayed below.
Mr Braddock
Apart from the evidence of Mr Tatt and Mr Tancred about the methods of transacting the sale and purchase of beef products, Mr Grant John Braddock gave this evidence at Vol 1, Tab 12.
Mr Braddock commenced his career in the meat industry as a butcher in 1988 when he was 16 years of age. He undertook an apprenticeship for three and a half years and worked as a retail butcher for approximately 22 years until he joined DRJ in about 1 July 2010. He has 28 years of experience in the meat industry as a butcher and salesman. He worked for DRJ until January 2016 as a salesman and was then promoted into the role of “Depot Manager” for Brisbane. In his role as a salesman, and in his current role, he trades meat every day for DRJ. That is, he buys meat from the meat processors and he sells meat to customers. In his role as a butcher he was responsible for purchasing meat and would buy meat at wholesale from suppliers like DRJ. He is familiar with the AMH device mark.
As to the method of selling, he says that when he sells meat to customers he does it by making telephone calls on a call sheet and by sending out emails. The telephone calls start early in the morning as butchers are commencing work and setting up their stores. The calls continue throughout the day. The computer records tell him the details of the customer, their latest order and previous purchases. He says that throughout his time in selling meat, he has sold a large quantity of AMH branded meat. He says that customers want the same product regularly (“each time”) and will insist that they are sold only AMH meat. Calls where clients insist on having AMH product happen daily or a number of times a day throughout DRJ’s office. He says that in his experience as a salesman, AMH meat is the brand of meat most requested by customers. He also says that in the meat industry customers will source different products from many wholesalers/distributors. In his affidavit, Mr Braddock says that there are four or five meat distributors and wholesalers close to the DRJ Brisbane office and he has observed the products supplied by a range of distributors on trucks which also collect product from DRJ.
Mr Black
Mr Michael Stanley Black is a Manager of the “Hans” retail butchers store at Wacol. Hans is a brand of processed meat products. Mr Black is a third generation butcher and has been involved in the meat industry all his life having commenced an apprenticeship at 14 in 1981. Over the last 35 years he has worked as a butcher (with short breaks) including running his own store as a butcher. He has also managed retail stores. In those roles he has been responsible for buying meat from suppliers; displaying meat in general retail stores; and responsible for butchers selling meat to retail consumers. He says that he has had “thousands of conversations” with retail consumers over the last 35 years. He says that he has been part of “thousands of transactions” by which he has purchased meat from suppliers. He says that, in the main, these transactions have occurred over the telephone although he also orders meat by email. Mr Black began working as Manager of the Hans shop at Wacol in December 2013. The Hans business was acquired by JBS in 2015. Mr Black says that he is aware of the AMH device mark, which he illustrates in his affidavit: Vol 4, Tab 31. He says that the AMH brand has been known to him for approximately 30 years as a brand and logo. He says that he recognises it immediately once a carton of meat is delivered. He says that for a period of some years he worked as a Manager of “Foodworks” in two stores at Loganholme and Woodridge. Foodworks is a small convenience retail chain of stores similar to IGA although the two stores Mr Black managed were independently owned by one owner. As Manager, Mr Black could buy and sell meat. He says that he purchased meat and would display the meat for sale. He says that whole primal meat was displayed in branded packages. Mainly, he sold “whole rumps” and those cuts were presented to the retail customer, in most cases, in the bag with the logo on the bag. The only time the whole primal meat product was not presented to the retail customer in that way was when there was no logo on the bag. This happened “only from time to time”. He says that when meat was delivered where no brand appeared on the bag, the meat was nevertheless delivered in a branded box containing that bag. He says that neither he nor anyone else at the stores he worked in, would re-package the stock. He says that there was no policy within Foodworks that meat contained in bags displaying a brand was not to be displayed to retail customers and Mr Black says that he was not concerned whether consumers could buy the brands elsewhere. So far as he knows none of the other managers of Foodworks stores had a concern to conceal the brand on a bag out of fear that customers could buy the same brand of meat elsewhere.
Evidence of confusion
In this case, the applicant has not put on any evidence of actual confusion although, of course, it is not necessary to do so in order to establish the contended causes of action. Nevertheless, the respondent says that the lack of any evidence of confusion is “telling”. I will address that matter later in these reasons.
The changes to the proceedings
It is now convenient before turning to the respondent’s evidence and contentions in response, to identify briefly the matters in issue in the proceeding and those matters now not in issue.
At the commencement of closing submissions, the applicant (as a result of discussions between counsel) sought and was given leave to rely upon a fourth amended fast track statement (the “FT Statement”) which had the effect of narrowing the applicant’s case. The respondent was given leave to rely upon an amended fast track response (the “FT Response”), by which two defences are not pursued. As to the applicant, it elected not to pursue an allegation that the respondent held, and had acted upon, a “deliberate intention to deceive”. The applicant had earlier abandoned a claim that the respondent’s conduct engaged contraventions of the Australian Consumer Law (“ACL”). In addition, claims based on contentions of passing off were not pursued. As to the respondent, it elected not to pursue a contention that it had used, in good faith, its own name (that is, a contention that use of “AMG” was use in good faith of the name Australian Meat Group Pty Ltd) and a contention that the trade marks of AMG are otherwise registrable by reason of honest concurrent use. In consequence, the applicant’s response to the contended honest concurrent use defence and the applicant’s reliance upon s 60 of the TM Act, fell away.
The central question remaining in the case for determination is whether the conduct of the respondent in using the AMG device mark; using either or both of the marks depicted at [15] of these reasons; and, or, using the AMG mark, is use of a sign that is either substantially identical with, or deceptively similar to, the AMH device mark or the AMH mark (the latter of which the applicant calls the AMH “word mark”) in relation to goods (meat products, put simply) the subject of the two registrations. The applicant says that it has not abandoned the contention of substantial identicality concerning the word mark although Senior Counsel for the applicant observes: “I am not going to say very much about it”. Senior Counsel adds that the applicant wants to “leave the argument open” T, p 268, lns 3‑14; T, p 287, lns 24‑27. Plainly enough, not very much emphasis was placed upon the contention by Senior Counsel for JBS. Nevertheless, the applicant relies upon the contention and I will address it.
The substantial battleground between the parties is whether the respondent’s conduct engages use of a deceptively similar sign as a trade mark in respect of the relevant goods for the purposes of s 120 of the TM Act.
The respondent seems to concede that it has used the impugned trade marks, “as trade marks”. Those trade marks are, plainly enough, used in relation to goods in respect of which the applicant’s two trade marks are registered.
The respondent contends, put simply, that its use of its trade marks, viewed as a matter of the application of the principles derived from the authorities to the relevant facts of the case, leads to the conclusion that its use does not engage use of a sign which is deceptively similar to the applicant’s marks in respect of the relevant goods, for the purposes of s 120 of the TM Act.
The respondent also says that a side‑by‑side comparison of the device marks or the “words” AMH and AMG makes plain that they are not substantially identical.
The respondent also says that it engages with very sophisticated participants in its trading relationships and none of those participants would be likely to be caused to wonder about whether the source or origin of the meat products in question is anything other than the respondent. I will return to those matters having examined the evidence upon which the respondent relies.
The applicant’s election not to pursue the ACL claims or the passing off claims does not mean, however, that the question of the “reputation” subsisting in the applicant’s AMH device mark or the AMH (word) mark is no longer relevant. It remains relevant to the central question of whether the conduct of the respondent can, in all the circumstances, be characterised as use of a sign which is deceptively similar to the applicant’s trade marks in respect of the relevant goods. Both parties have addressed submissions on the intersection between that question and the extent to which JBS enjoys a reputation in the two AMH trade marks. I will return to that question later in these reasons.
In the course of the proceedings, a number of orders were made on 11 February 2016. As to procedural matters, an order was made that the issues raised in paras 1 to 53 of the amended fast track statement filed on 2 February 2016, including whether there is a basis for the applicant’s claim to additional damages under s 126(2) of the TM Act or exemplary damages at common law, be determined separately from and prior to the issue of quantum of any pecuniary relief (including additional or exemplary damages) as claimed in para 54 of the fast track statement: para 2. Paragraph 54 of the present FT Statement continues to make that claim.
It seems clear enough therefore that the matters to be determined as a separate question in this part of the proceeding are the matters of infringement and whether the respondent has engaged in conduct which gives rise to a basis for the applicant’s claim to additional damages under the TM Act or exemplary damages at common law. If so, the quantification of that claim along with the determination of the quantum of any claim for damages is to be determined in the separate proceeding.
The evidence of the respondent
I will now turn to the evidence relied upon by the respondent.
Mr Cabral
Mr Pierre Gilbert Cabral is the Managing Director of AMG: his affidavit is at Vol 3, Tab 22.
Mr Cabral says this.
Mr Cabral has worked in the meat industry for over 35 years. He began working with Mr Joe Catalfamo in the early 1980s. He ultimately took over, from 1987, as Managing Director of companies controlled by Mr Catalfamo which were referred to as the “Tasman Group”. Mr Cabral held that role until 2008 when the Tasman Group was sold to JBS Southern Australia Pty Ltd, a company related to JBS. From 1987 until 2008, Mr Cabral was responsible for the “meat processing side” of the business. Mr Catalfamo was responsible for the “retail side” of the business. Mr Cabral began working with Mr Catalfamo again on 1 January 2014 in a company, controlled by Mr Catalfamo, called Administration Group (EAG) Pty Ltd (“EAG”) with the intention of starting a new meat business. They decided to re‑enter the meat processing business. They needed a new name because EAG meant nothing in relation to meat. In early 2014, they held regular meetings on Friday mornings at EAG’s office in Brooklyn to discuss starting a new business. The meetings were attended by Mr Catalfamo, Mr Tony Tarquinio (who later took up the role of Chief Financial Officer and Company Secretary in AMG), Mr Catalfamo’s two sons, Sebastian Catalfamo and Joseph Catalfamo Jnr, and Mr Catalfamo’s daughter, Rosaria Catalfamo, who is Mr Catalfamo’s Secretary.
During one of these meetings, Mr Tarquinio provided a short list of potential business names he had “come up with” for the new meat processing business and although Mr Cabral could not recall the names on the original short list he recalls that Australian Meat Group was not on Mr Tarquinio’s list.
Mr Cabral says that he and Mr Tarquinio emailed EAG’s Accountant, Mr Peter Zervos, in February 2014 with a number of potential names for the new meat business drawn from Mr Tarquinio’s short list. He says that he and Mr Tarquinio asked Mr Zervos to undertake company searches to check whether any of the chosen names were available. One of the names they asked Mr Zervos to search was “Australian Consolidated Meat Group” and some variations of that name. Mr Cabral’s recollection when giving evidence was that there was no email sent by him (at least) and probably no email sent by either him or Mr Tarquinio prior to the commencement of the email chain of 11 February 2014 mentioned below. His recollection was that he had a telephone conversation with Mr Zervos about some possible names or key words he was looking for in relation to a new company: T, p 160, lns 38‑40; T, p 161, lns 12‑13; T, p 164, lns 26‑32.
On 11 February 2014 at 2.53pm, Mr Zervos sent an email to Mr Cabral telling him that nine company names were available for registration (none of which were Australian Meat Group Pty Ltd) and that the names Australian Meat Exports Pty Ltd and Australian Meat Processors Pty Ltd were not available. On 14 February 2014 at 5.32pm, Mr Zervos sent an email which addresses “Tony” (Mr Tarquinio) and tells him that the name in red in the email, Australian Consolidated Meat Group Pty Ltd, is available. The email also addresses “Gil” (Mr Cabral) and tells him that the names Australian Consolidated Meats Pty Ltd and Australian Consolidated Meat Exports Pty Ltd are also available: Exhibit 30.
Mr Cabral says that on a Saturday morning in February 2014 he was driving to his home from the Brooklyn office (the Melbourne office of AMG) and saw a truck with a name along the lines of Australian Food Group. That caused him to think about a name incorporating the words “Australian”, “Meat” and “Group” in the new name for the new company. On Saturday, 15 February 2014 at 12.50pm, Mr Cabral sent an email to Mr Zervos saying this:
ACMG Aust consolidated meat group seems too long
AMCG –
try
AMG – Australian Meat Group – as per joes cars
or AMC
Mr Cabral says that the reference to “Joe’s cars” is a reference to Mercedes SL500–AMG cars which Mr Catalfamo had enjoyed driving over a period of 25 to 30 years. Mr Zervos said he would look into the names. Out of that group of names only Australian Meat Group Pty Ltd was available. On 17 February 2014 at 1.32pm, Mr Zervos sent Mr Cabral an email telling him that of the nominated names only Australian Meat Group Pty Ltd was available. At the Friday meetings, the group earlier described, continued to discuss names for the new company throughout February. On 21 February 2014 at 11.24am, Mr Tarquinio sent an email to Mr Zervos saying this:
The preference would be to use Australia Meat Group but our concern is that someone is already using AMG Pty Ltd and [there] could [be] brand issue implications in the future.
The other name – Australian Consolidated Meat Group is too long therefore can you try if available the following:
Australia Consolidated Meat Pty Ltd, and
ACM Pty Ltd
[original emphasis]
Mr Watson gave some evidence which seems a little odd to me in the context of the evidence overall. He said that specifically branded meat is rare in the Australian market. He may well have that perspective because he says that, for Coles, there is a very clear imperative that no brand other than the Coles own brand appear on the meat. That may mean that Mr Watson is not really very conscious of branding because ultimately everything is subsumed to the “Coles own brand”. He says he knows of the King Island Beef brand and David Blackmore’s Wagyu Beef brand. However, the evidence is that wholesalers deal with a range of brands and in the plurality of market transactions characterising the field of rivalry at the various functional levels of the market (as opposed to the bilateral procurement arrangements particular to Coles), there are plainly a range of brands of beef. The respondent itself talks about its Premium Angus brand and its Southern Ranges Platinum brand apart from its boxes marked with the AMG device brand alone. There is the AMH brand, the Swift Premium brand, the Friboi brand, the Royal brand, the 1824 Premium Beef brand, the Darling Downs Wagyu brand, the Master Kobe brand, the Riverina Angus brand and a number of others. As Mr Watson says, the commercial interests of Coles have been best served by presenting meat products with only “Coles brand beef” to customers and this focus may have caused him to believe that there are very few brands on the market. He is plainly wrong about that matter. On the question of the rapid increase in the emergence of brands over the last six years or so, I accept the evidence of Mr De Luca at [48] in preference to the views of the respondent’s witnesses.
I generally accept Mr Watson’s evidence as described at [169]‑[171].
At [173], I note evidence given by Mr Watson to the effect that he has not seen AMH as a significant brand in the marketplace either as a buyer of meat or as a wholesaler of meat or as a brand for sale at a retail level. He says he has not had that experience since JBS acquired Australian Meat Holdings in 2007. Again, that evidence seems odd to me because the statistics demonstrate the enormity of the sales by JBS as a wholesaler of AMH meat products to the domestic market and the export market. The sheer volume of meat sold under the brand, packaged as it is in the plastic bags as described, and supplied in the cartons as described, generating the revenue as described, seems to make it difficult to conclude that AMH has not operated as, at the very least, a “significant brand” either in circumstances of being a buyer or a wholesaler or as a brand attached to meat available for sale at the retail level. Mr Watson accepts that AMH as a brand is “known” in the meat industry but he believes this to be “historical” and he says that JBS, in his opinion, has made a concerted effort to push its brands “over the top of the AMH brand”.
There are three things to note about these observations.
First, Mr Watson comes at these matters from a very particular perspective as a person who has been engaged in operating the meat trading activities of a very particular buyer in the particular circumstances determined by that buyer with all of its upstream management.
Second, Mr Watson does not have the data concerning the trading activities in the AMH brand from 2008 to 2015. It would be objectively difficult to hold the views he holds in the face of that data. Moreover, the evidence is that trades have been occurring, offers made in pricelists, and emails exchanged, between relevant market participants for the purchase of meat products using the product description “AMH”: [58], [59], [61], [62], [73], [77]‑[79] and [184]‑[187].
Third, moreover, the opinion Mr Watson holds on this issue is expressly inconsistent with the extent of the reputation in the “AMH brand” adopted and conceded by the respondent in these proceedings (T, p 333, lns 18‑20; except at the level of the retail consumer), to the point where at the functional levels of the “wholesalers, export markets, and for supermarkets, and for independent butchers”, there is said to be a “strong reputation”. As mentioned earlier, Senior Counsel for the respondent, Mr Heerey, “embraces” what Senior Counsel for the applicant, Mr Shavin, “says about the endless thousands of millions of kilograms and cartons [and bags] flowing into wholesalers and distributors, and butchers on a regular basis with the AMH brand blazoned all over it with its particular logo”: T, p 333, lns 26‑29. Nevertheless, I certainly accept that Mr Watson holds those views.
As to the evidence of Associate Professor Cox, I have not found her evidence to be very helpful because her opinions operate at too high a level of abstraction. In making that observation, I do not wish to suggest any disrespect to Associate Professor Cox and I recognise and accept her expertise in phonetics and phonology, the two closely related scientific branches of linguistics.
I accept that acronyms pronounced as a “string of letter names” are sometimes differentiated as initialisms and that because the trade marks AMH and AMG do not satisfy the criteria for word‑forms in English, readers or observers are likely to pronounce the acronym by using the “letter names”. I accept that, plainly enough, the last syllable “H” and “G” differentiates each initialism by reason of the final “syllable”. I also accept Associate Professor Cox’s view that the pronunciation of the first two syllables “AM” would be the same but there would be a difference in the pronunciation of the final syllable. I also accept that as a matter of principle, the difference in the final syllable would be linguistically important in the pronunciation of the final syllable: [202].
The point of departure I have with the evidence of Associate Professor Cox is that it has no contextual application to the engaged field of common human endeavour in question in the case. It is entirely acontextual.
For example, Associate Professor Cox seeks to illustrate the differentiating phonetic feature of words by contrasting the words “dog” and “dot” observing that the difference in the last speech sound of each word leads to different meanings. Of course, in context, when a person makes a telephone call to a veterinary surgeon to enquire about a problem the person has with his or her dog, he or she would be unlikely to find that the receptionist or the veterinary surgeon hears, as a matter of pronunciation by the caller, a “speech sound”, of “dot” for the word “dog”, largely because, no doubt, the receptionist or the veterinary surgeon is cognitively expecting to hear a reference to “dog”, rather than “dot” in the context of enquiries made to a veterinary practice about an animal taxonomically described by the word “dog” rather than “dot”. Similarly, a person engaging with another in a field of activity or in a context which conditions the use of the word “dinosaur”, would be unlikely to find that the person with whom they are engaging hears a “speech sound” consistent with “dynamite”. Context is everything, especially in the hurly burly of oral commercial transactions in the purchase and sale of meat products as revealed in the evidence.
Associate Professor Cox then applies those concepts just described derived from principles governing words, to acronyms pronounced as initialisms and observes that AFI (an acronym for Australian Film Institute) and AFL (an acronym for Australian Football League) and AFP (an acronym for Australian Federal Police), are examples of acronyms which constitute initialisms which differ only in their final syllable and are differentiated in their pronunciation by the final syllable. However, in context, a person who is asked, in Melbourne, for example (as I have been asked many times as a non‑resident but regular visitor to that great city), “which AFL team do you follow?”, would be unlikely to hear the acronym “AFL” as “AFI” because the context would render it nonsensical. Similarly, two persons steeped in an interest in film and film genre, talking about which actors, directors or writers, might win awards at the Annual AFI Awards would be unlikely to hear, as a matter of speech sound or pronunciation, “AFI” as “AFL” or “AFP”. References, by initialisms, to the Australian Football League or the Australian Federal Police would also be nonsensical in that context.
However, if two initialisms are in play in a common field of activity by participants in a field of rivalry engaged in the sale of the same or substantially the same meat products in a domestic and export market amongst many of the same market participants, the theoretical differentiation in pronunciation of the final syllable in AMH and AMG might well lose its structurally deconstructed abstracted integrity in the context of the cut and thrust of ordinary commercial arrangements by ordinary commercial people pronouncing AM something and AM something else in the sale and purchase of meat products, having regard to what is ordinary in that sense on the evidence.
Thus, I do not find the opinions expressed by Associate Professor Cox to be helpful in the context of the real questions that have to be asked about the use of the initialisms in an applied way.
As to the evidence, I simply add this observation. I have read the transcript of the proceedings closely and have taken all the evidence into account. I have attempted to deal with all of the evidence comprehensively. To the extent that I have not mentioned or set out in these reasons aspects of the evidence, I should not be taken as not having considered all of the relevant matters.
It is now necessary to apply the governing principles to the evidence I have accepted. In doing so, I make these observations:
(1)The AMG device mark was lodged for registration on 8 April 2014. The AMG trade marks depicted at [15] were lodged for registration on 3 March 2016. The respondent commenced trading in beef products in cartons (boxes) in January 2015: Exhibits 20, 21, 22 and 23. The boxes were designed between September and December 2014.
(2)As the image at [2] reveals, the AMH device mark consists of a stylised map of Australia enclosing a white field with the letters AMH across the centre of the map, with the map and enclosed letters, sitting on a ribbon feature. The word mark consists of the letters AMH.
(3)The AMG device mark consists of a stylised map of Australia in more free‑flowing form enclosing a white field with the letters AMG in something akin to cursive text sitting in the centre of the map with the words Australian Meat Group in small but capital text as depicted at [13]. There is a version of the device mark described and depicted at [18].
(4)As to the two trade marks depicted at [15], they too incorporate the AMG device mark. The applicant says that they are also characterised by a ribbon device. Minds might legitimately differ about whether that is an accurate description. However, what is clear is that each of the trade marks depicted at [15] (and, of course, [134] and [135]) contain the AMG map device with the three letter acronym in the middle. I accept that the impression on the mind’s eye when looking at those trade marks is that the dominant feature is the AMG device mark. It is true that the image at [134] contains the additional words forming part of the branding for the box of “Southern Ranges” and underneath it the word “PLATINUM”. It is also true that the image at [135] contains the additional words forming part of the branding for the box of “PREMIUM” and underneath that word in apparent handwriting Angus Beef. Those words are essentially descriptive and laudatory of the quality of the meat contained within the box. Notwithstanding the addition of those words in each case, I am satisfied that an essential feature of the branding or badging for each box is the AMG device mark as described.
(5)For all the reasons mentioned in the evidence which I have accepted, some of which is summarised at [257], it is perfectly plain that the respondent uses the AMG device mark as a badge of identification and uses the acronym AMG as a badge of identification.
(6)The industry practice is that acronyms are used to identify the source of product, that is to say, as a bridge or link or badge of origin. Mr Cabral was very much influenced to select the name Australian Meat Group because he understood that industry participants would quickly abbreviate the name to the three letter acronym AMG. I mention that matter not because of any question going to intention to deceive but simply because Mr Cabral recognised the industry practice in this regard, and that practice influenced his selection of the company name. The acronym AMG would, he thought, prove to be “easy to remember” and have a “zing to it”.
(7)The evidence makes plain that industry participants order meat products by reference to the acronyms AMH and AMG.
(8)As to the reputation subsisting in AMH and the AMH device mark, there can simply be no doubt that there is a very significant and substantial reputation subsisting in those two trade marks. The respondent does not contest that proposition insofar as the reputation is recognised in cohorts operating at functional levels of the market which involve buying and selling activity by wholesalers, those acquiring meat products for sale for export, direct export by processors, supermarkets and independent butchers. The respondent describes the character or quality of that reputation as a “strong reputation”. The respondent contends that, at the level of the retail consumer as a buyer of meat products, AMH does not enjoy a “strong reputation” or, for all relevant present purposes, a reputation at all.
(9)As to the question of scale, the statistics in evidence which I have accepted, speak for themselves. As to the export market, AMH, is the largest meat processing company in Australia. It exports to 80 countries. Plainly, the applicant enjoys a strong reputation at the various functional levels of the supply chain in the sale and supply of meat products in the domestic market and it enjoys a strong reputation for its products in the export market. So much is accepted. However, notwithstanding the “strong reputation” at all functional levels of the market except at the functional level of retail sales (a matter to which I will return later in these reasons), I am not satisfied that that reputation is so pronounced in the Maltesers sense that no “imperfect recollection” of the AMH device mark and AMH word mark would be brought to any engagement with the AMG device mark and AMG word mark by members of the cohorts operating at those functional levels of the market. In other words, the reputation is not so pronounced that somebody seeing the AMG trade marks and especially the AMG device mark would, analogically speaking, say: “That’s not a Maltesers box”. The recollection would be imperfect and thus the conduct of the respondent is susceptible of deception and confusion.
(10)The supply chain for the sale of meat products into the domestic market is explained in the evidence which I have accepted. However, the supply chain activities involve these steps. Livestock is purchased by the applicant either at saleyards or from the “farm gate” under contracts with farmers. Livestock are transported to an abattoir where each animal is killed and boned. Some abattoirs (processors) conduct kill and bone operations on a tolling basis for buyers such as Coles and Woolworths. The processing activity results in the meat being reduced to whole primal cuts which are then placed in bags as described in the evidence and chilled, or the meat is frozen. The supply chain involves the supply of meat products in whole primal form to a range of wholesalers, and also supply by the applicant to D.R. Johnston, as described in the evidence. Wholesalers and DRJ on‑sell meat to others as described in the evidence. The wholesale entities supply distributors, manufacturers and/or retail entities. The whole primal cuts are then normally cut into portions by retailers (butchers) for consumers to buy. Sometimes, whole primal cuts are placed on display in cabinets where consumers can cast their eyes upon them in that form: [18], [68], [74] and [87]. Sometimes, retailers acquire portion‑cut meat from intermediate processors.
(11)The evidence demonstrates that whole primal cuts packaged in plastic bags marked with the AMH device mark are available for purchase by retail consumers in that form at some retail sites. The evidence also shows that whole primal cuts in bags marked with the version of the AMG device mark depicted at [18] are available for purchase by retail consumers at some sites. In each case, in the images in evidence, the device mark can readily be seen. Sometimes, the AMH mark will be on a bag which also contains an insert exhibiting another mark as well, such as Swift Premium: [68]. Sometimes, the device mark endorsed on the plastic bag might be overlayed with another trade mark by a retailer such as IGA. Sometimes, butchers as retail traders, might place their own brands on the meat. Generally, butchers will remove whole primal cuts from the processor’s packaging and cut the meat into portion controlled segments. Nevertheless, the evidence shows that in a number of retail sites, whole primal cuts can be purchased, packaged in the processor’s plastic packaging bearing the device marks.
(12)80% of the applicant’s processed beef is sold into the export market into 80 countries as previously mentioned. 70% of the respondent’s meat products are sold on the export market.
(13)The evidence is that 2.2% of all beef consumed in Australia is displayed to retail consumers in whole primal form in a retail environment. So far as AMH is concerned, that means that approximately 2.2% of the 20% of its processed beef sold into the domestic market is displayed to retail consumers in whole primal form in a retail environment. It also means that 2.2% of the 30% of the AMG processed meat sold into the domestic market is displayed to retail consumers in whole primal form in a retail environment.
(14)That being so, although 2.2% appears to be a small percentage, it means that in the period 2008 to 2015 in the case of AMH, there were 972,701 bags marked with the AMH device mark available for retail sale as primal cuts representing 3,776,417 kilograms of meat product, according to Mr De Luca’s Annexure “BJDL‑4”, apart from the evidence of Mr Tancred and his schedule.
(15)In the domestic market, there is a strong reputation for the AMH brand in all functional aspects of the supply chain amongst those cohorts participating as wholesalers, distributors, manufacturers, supermarkets, butchers and retailers. I am also satisfied that the AMH trade marks enjoy recognition and reputation at the functional level of interactions between a retail seller of whole primal cuts and a consumer. The reputation in the AMH device mark and AMH word mark is, obviously enough, less pronounced than the reputation those marks enjoy at other functional levels of the market. Nevertheless, the marks enjoy recognition and reputation at the retail level. I am not satisfied that the so‑called Maltesers principle has any role to play at the retail level.
(16)The export cuts produced by AMH are either cryovaced in bags marked with the AMH device, by and large, or frozen. The primal cuts tend to be in AMH marked bags. The bags containing meat supplied in boxes marked with the brands Swift or Swift Premium or Friboi or Royal bear the AMH device mark on the bag. It is true that the AMH brand might be on the “bottom” of the bag in the sense that the bag is inverted or turned over, with an inset on the “top” section of the plastic bag. Nevertheless, each bag is endorsed with the AMH device mark at [29].
(17)As to the so‑called north/south divide, I accept that AMG procures livestock for slaughter and processing predominantly in southern Australia and that AMH predominantly procures livestock in northern catchments. However, two things should be noted. First, the applicant’s registrations of its trade marks are national and unqualified. Second, there is some evidence that cattle are acquired by the applicant in Victoria and southern New South Wales and taken to Dinmore for slaughter. Moreover, the evidence demonstrates that at least to some extent the respondent is supplying its primal cuts for sale in Queensland.
(18)Purchase and sales transactions occur as between wholesalers and retailers by telephone and thus orally and by email. DRJ has 6,000 customers who buy meat products. Mr Tatt says that there are about 10 major meat distributors which represent 80% of the market demand and the remaining 20% is comprised of a significant number of smaller distributors. The total would be about 100: [75].
(19)Without wishing to unduly constrain the balancing of all the relevant circumstances, it seems to me that the question (subject to the consideration discussed at (28) and following), ultimately comes down to this, so far as the domestic market is concerned, leaving aside for the moment the cohort represented by the retail consumer: that is, having regard to:
(a)the circumstance that AMH is a trade mark that has been used for decades;
(b)its reputation is strong at all functional levels of the market amongst the cohorts engaged in market activity at these levels;
(c)the AMH device mark and the AMH mark have been used in connection with a vast number of bags and cartons containing meat products the subject of the registrations;
(d)the goods of the applicant and the respondent are traded in markets substantially in common areas among the same cohorts of buyers although particular sectors of those cohorts may tend to engage with the applicant on the one hand, or tend to engage with the respondent on the other hand;
(e)the essential feature of the AMH device mark is a stylised map of Australia enclosing a white field with the letters AMH across the centre of the map with the map and enclosed letters sitting on a ribbon feature;
(f)the essential feature of the AMG device mark is a stylised map of Australia enclosing a white field with the letters AMG across the centre of the map without the map being located on a ribbon feature albeit with the words Australian Meat Group across the bottom of the map;
(g)the visual impression and imperfect recollection of the essential features of the AMH device mark carried away by those traders having engaged with it over time; and
(h)the characteristics of the supply chain and the methods of sale and purchase of meat products in that supply chain and thus the ordinary conduct of buyers and sellers engaging in steps in the supply chain,
is there a finite and non‑trivial ([230]) real tangible danger, that is to say, a real non‑trivial likelihood ([231](ii)), that use of the AMG device mark will result in a number of people being caused to wonder, or left in doubt ([231](ii)) whether it might not be the case that the meat products of AMG are those of, or associated with, AMH (JBS)?
(20)I am satisfied that the answer to that question is “yes”.
(21)I am also satisfied that when the same question is asked having regard to the same considerations except that the focus of the enquiry is upon the respondent’s use of “AMG”, in the context of the longstanding reputation of “AMH” (conditioned by use of the AMH device mark containing the acronym) coupled with the volume of trade by reference to the acronym, the answer is also “yes”.
(22)As to the AMG device mark, I do not regard the addition of the words “Australian Meat Group” placed across the bottom of the continent on the map as a sufficiently distinguishing feature so as to cause the answer to the questions to be “no”.
(23)Further, the circumstance that “H” is the final syllable in the acronym “AMH” and that “G” is the final syllable in the acronym “AMG”, is not a sufficiently distinguishing feature of the two marks when AMH has been used in the same market for so long.
(24)I accept that in oral communications in the hurly burly of oral trading transactions between retailers and wholesalers the emphasis is likely to be upon the “AM” component of the letter acronyms and that the last syllable is not sufficiently differentiating. As I indicated earlier, I am not assisted by Associate Professor Cox when the question is examined, as it must be, in a relevantly applied context.
(25)I accept that at the level of engagement between a retailer and a consumer when it comes to potential sales of whole primal cuts, there is at least a reputation subsisting in the AMH device mark and word mark. I accept that a consumer is likely to bring to the presentation of whole primal cuts bearing the AMG device mark and the letter acronym “AMG” an imperfect recollection of the AMH device mark and the AMH word mark. I accept that there is in those engagements a finite and non‑trivial real tangible danger of confusion. Such confusion might be dispelled at the point of a purchase transaction or it might not. Whether it is or is not, is not the relevant question. There is, in my view, a real non‑trivial likelihood that consumers exposed to whole primal cuts in the way depicted at [18] will be caused to wonder or left in doubt whether it might not be the case that the meat products of AMG are those of AMH.
(26)I also accept that an element of a likelihood of such a consumer being caused to wonder or being left in doubt is whether a consumer might think, as a matter of imperfect recollection, that whole primal cuts in a bag marked with a stylised map of Australia enclosing a white field with “AMG” in the middle of the map is, somehow or other, a version, or a more modern version, or some form of variant upon, the AMH device mark.
(27)In the export market, the applicant exports to 80 countries and again has a very substantial volume of meat product supplied through export channels. Sales occur directly into the export market and to entities within Australia which supply meat products into the export market. I also accept that there is a real non‑trivial risk or tangible danger or a real non‑trivial likelihood, that export customers having a recollection of the AMH device mark and the AMH word mark, might be caused to wonder or left in doubt about whether meat products marked with the AMG device mark and the AMG letter mark are products of the applicant or products associated in some way with the applicant. This is especially so having regard to the many different languages in the various export destinations in which importers of meat products operate.
(28)The consideration mentioned at (19) is this. I accept that in the domestic market many of the wholesalers acquiring meat products from processors and resupplying meat to distributors, manufacturers, retailers, supermarkets etc are participants in the market who bring an enquiring mind to purchase transactions having regard to the consideration that the orders placed are normally orders for significant quantities of meat. The average purchase order into the domestic market placed with wholesalers is mentioned in the evidence. Some of those wholesalers may not be as “sophisticated” as others. There may be as many as 100 or so buyers operating at greater or lesser degrees of market engagement exhibiting a greater or lesser degree of enquiry. However, on balance, many of the wholesalers (but not all) are likely to be discerning and in that sense they are “sophisticated”. I proceed on the basis that this is a consideration which characterises ordinary transactions at this functional level of the domestic market. I suspect that in the course of transactions, over time, some wholesalers are likely to ultimately come to recognise that notwithstanding the reputation of AMH and the understanding such wholesalers have of the word mark and the device mark (and their imperfect recollection of it), the trade marks adopted by the respondent in the form of the AMG device mark and the AMG letter mark convey a notion that those marks are a badge or source of origin of goods supplied or offered to be supplied by a new or different company, not associated or connected with JBS but one which is a contestable rival of JBS.
(29)Nevertheless, I am entirely satisfied that the use by the respondent of its trade marks at this functional level of the market engages a finite and non‑trivial danger or real and non‑trivial likelihood that a number of participants at the wholesale level of the market will necessarily be caused to wonder or left in doubt about whether it might not be the case that the meat products of AMG are those of the owner of the AMH trade marks. That finite and non‑trivial danger or real and non‑trivial likelihood might well, over time, come to be dispelled in the minds of some wholesalers (but not necessarily all), but that is not an answer to the question of whether use by the respondent of its trade marks involves deception or confusion. It plainly does so and, no doubt, a respondent engaging in that conduct would try very hard to bootstrap itself into a position where it seeks to dispel the deception or confusion once it has engaged the market participant and, from its perspective, hopefully, captured it as a buyer. However, it is not necessary for the applicant to show passing off or that transactions have actually been lost. There is a very good reason for this in the trade mark law of this country. It is very difficult, often, to show the extent to which transactions have been lost. The trade marks of an owner are sufficiently prejudiced and compromised and their integrity diminished when rivals seek to use a sign in connection with the relevant goods, which is deceptively similar. A respondent engaging in conduct which gives rise to deception and confusion in the sense discussed in the authorities, is the very essence of the infringement right.
(30)On this issue of the sophistication of wholesalers or buyers at particular functional levels (leaving aside the retail consumer level), I am not aided by Mr Watson’s evidence. His evidence operates at a very particular level as earlier described. The respondent says that Mr Watson’s evidence is absolutely emblematic of the extent to which wholesalers generally bring discrimination and sophistication to the purchase transactions, in the markets. For the reasons I have already identified, I do not agree that Mr Watson’s evidence is decisive of that question or even necessarily influential in an assessment of the position relating to behaviour in a multilateral field of rivalry as opposed to the very particular features characterising the “arrangements” under which Coles operates.
(31)I take the view that the same conclusion reflected at (29) and (30) applies in relation to conduct in the export market. It is clear that the respondent vigorously promotes its trade marks in connection with the export sale of its goods. It vigorously promotes its trade marks to potential new clients. It uses the device mark in its PowerPoint presentations and it emblazons its device mark on stands at international trade fairs. Again, international importers of meat products might, ultimately, come to understand that the trade marks used by the respondent in connection with trade in its meat products, operate as a badge of origin of a new company unrelated to JBS. However, that is not the test. I accept that the respondent has embarked upon a relationship‑based campaign to attract buyers of its export meat products and I accept that it has pressed many of the pre‑existing relationships enjoyed by Mr Cabral and Mr Catalfamo with buyers from an earlier time. I accept that in respect of a number of these bilateral relationships, AMG’s relationship partner would not be in any doubt that the person he or she is dealing with is a representative of a new company brought into existence by Mr Cabral and Mr Catalfamo and one not associated with the owner of the AMH trade marks. However, these engagements simply reflect the course of conduct to date by the respondent. In any event, the respondent is not simply dealing with relationship partners. It is promoting itself and its meat products to the export market at large under and by reference to its trade marks. Its use of those trade marks in that way involves a finite non‑trivial real tangible danger that some participants in the export market will be caused to wonder in the relevant sense I have described.
(32)It should also be recalled that Mr Cabral was very direct about the utility of a three letter acronym like AMG and although the respondent says that in dealing with new customers great emphasis is placed upon the name Australian Meat Group, it seems to me having regard to the PowerPoint presentation that “AMG” is very likely to be the acronym used to describe the respondent and its products together with the badge of identification emblazoned on its meat products in the form of the AMG device mark.
(33)It follows from all of this that I am satisfied that at each functional level of the domestic market and the export market, the conduct of the respondent engages infringement of s 120(1) of the TM Act on the footing that the respondent has used as a trade mark two signs consisting of the AMG device mark and AMG word mark that are deceptively similar to the AMH trade marks in relation to goods in respect of which the trade mark is registered having regard to the tests to be applied to the facts in the context of s 10 of the TM Act.
(34)I am also satisfied that the use by the respondent of the two trade marks depicted at [15], [134] and [135] also engages an infringement on the footing that these trade marks constitute use, as trade marks, of signs deceptively similar to the AMH device mark and the AMH word mark in relation to goods in respect of which both AMH trade marks are registered.
(35)Without restating the totality of the evidence on infringement, I am satisfied that the evidence I have accepted makes good the causes of action.
At [112] to [125], I describe the evidence in relation to the evolution of the name Australian Meat Group and the various company names which were investigated as possibilities for use. There were a number of company names that were considered and were available. However, for the reasons identified by Mr Cabral, a name reflecting a three letter acronym was to be preferred. At [117], I note an email sent by Mr Tarquinio to Mr Zervos on 21 February 2014 in which Mr Tarquinio says that the decision‑making group had exercised a preference for Australian Meat Group. However, he added the qualification that “but our concern is that someone is already using AMG Pty Ltd and [there] could [be] brand issue implications in the future”.
It is not clear what Mr Tarquinio meant by that observation but he seems to have reflected an opinion that there could be brand issues in the future in relation to the use of the name Australian Meat Group recognising, of course, that which Mr Cabral recognised, which is that industry practice is to abbreviate a name to, in this case, an “easy to remember” acronym “AMG” which has a “zing to it”.
Having regard to those matters, the applicant says that Mr Tarquinio’s unexplained failure to give evidence, gives rise to a Jones v Dunkel inference that Mr Tarquinio’s evidence on the nature of the “brand implications for the future” would not have been helpful to the respondent.
I am not willing to draw that inference because it is equally open to conclude that Mr Tarquinio’s reservation was in relation to the very specific entity AMG Pty Ltd rather than anything else.
The applicant also says that the evidence demonstrates that nothing was done by the respondent to investigate the possible consequences of adopting the name Australian Meat Group in circumstances where it was expected from the outset, as a matter of industry practice, that that name would rapidly be abbreviated to AMG in relevant market behaviour. The applicant says that no enquiry was made about the consequences of associating its products with the acronym “AMG” or the AMG device mark. The applicant says that no legal advice was taken about these matters and that, in effect, the respondent pushed on in disregard, perhaps reckless disregard, of the consequences of using the trade marks to be adopted. This is said to give rise to a proper foundation for a finding that the respondent’s conduct warrants the imposition of additional damages which are to be calculated in the later separate hearing.
I do not propose to recite the content of the factual matters going to that question, in these reasons. I have examined the evidence and the submissions carefully. I am not satisfied that there is a proper foundation for an award of additional damages. The respondent, by its officers, engaged in conduct. The applicant has made good the proposition that that conduct, in the way I have described, engages infringement of its trade marks. However, there is no basis for additional damages.
As I indicated earlier, I am also satisfied that the use by the respondent of the trade marks reflected at [15], [134] and [135] engage infringements of the applicant’s trade marks. The addition of other words and titles on the boxes and in conjunction with the AMG device mark does not have the effect of distinguishing or differentiating the branding which adopt as an essential feature, the AMH device mark which suffers from the difficulties earlier described in the sense that it reflects the essential features of the AMH device mark. Use of these marks is infringing conduct.
I propose to make directions that the applicant submits proposed orders to be made arising out of these reasons within seven days. The costs of and incidental to this stage of the proceedings will be reserved for later determination upon the making of orders arising out of this part of the proceedings.
I certify that the preceding two hundred and eighty‑seven (287) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 30 November 2017
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