Kettle Chip Company Pty Limited v Pepsico Australia Pty Ltd

Kettle Chip Company Pty Limited (Kettle) sought interlocutory injunctions against Pepsico Australia Pty Ltd (Pepsico) to restrain Pepsico from infringing Kettle's registered trade mark "KETTLE" and from engaging in misleading and deceptive conduct. The dispute concerned Pepsico's use of the mark "KETTLE" on its potato chips, which Kettle alleged was likely to cause confusion and damage to its brand. The matter was heard in the High Court of Australia.

The primary legal issues before the High Court were whether Pepsico's use of the mark "KETTLE" infringed Kettle's registered trade mark, and whether Pepsico's conduct constituted misleading or deceptive conduct in contravention of the relevant provisions of the Trade Practices Act 1974 (Cth). The court was required to assess the likelihood of confusion among consumers and the potential for damage to Kettle's goodwill and reputation.

The High Court considered the principles governing the grant of interlocutory injunctions, including the need to establish a serious question to be tried and that the balance of convenience favoured the granting of the injunction. The court analysed the strength of Kettle's trade mark and the degree of similarity between the marks and the goods in question. It also examined the evidence of actual or likely confusion and the potential for Pepsico to gain an unfair advantage. The court applied the established tests for trade mark infringement and misleading or deceptive conduct, focusing on the overall impression created by the marks and the circumstances of their use.

The High Court ultimately granted the interlocutory injunctions sought by Kettle, finding that there was a serious question to be tried regarding both trade mark infringement and misleading and deceptive conduct, and that the balance of convenience favoured Kettle.