Kellogg Company v Premium Brands Pty Limited

Kellogg Company (Kellogg) brought proceedings against Premium Brands Pty Limited (Premium Brands) in the Federal Court of Australia. The dispute concerned Kellogg's claim that Premium Brands had infringed its registered trade mark for the word "Nutri-Grain" and its associated get-up, which Kellogg uses for its breakfast cereal. Kellogg sought an injunction to restrain Premium Brands from using the mark "Nutri-Grain" and the associated get-up on its own cereal product.

The primary legal issues before the Court were whether Premium Brands had infringed Kellogg's registered trade mark for "Nutri-Grain" under section 120 of the *Trade Marks Act 1995* (Cth), and whether Premium Brands had engaged in misleading or deceptive conduct in contravention of section 18 of the *Australian Consumer Law* (ACL). Specifically, the Court had to determine if the use of the mark and get-up by Premium Brands was likely to deceive or cause confusion among consumers as to the origin of the goods.

The Court considered the evidence of the respective products, their packaging, and the market in which they were sold. It applied the well-established principles for assessing trade mark infringement and misleading or deceptive conduct, which involve considering the overall impression of the marks and get-ups on the relevant consumer. The Court found that while there were some similarities between the products, the differences in the branding and packaging were sufficient to avoid a finding of infringement or contravention of the ACL. The Court concluded that the average consumer would not be deceived into believing that Premium Brands' product was made by or associated with Kellogg.

Consequently, the Court dismissed Kellogg's application for an injunction and ordered that Kellogg pay Premium Brands' costs of the proceeding.