Kiwi Munchies Pty Ltd v Ingham's Enterprises Pty Ltd

Kiwi Munchies Pty Ltd (the applicant) sought an interlocutory injunction against Ingham's Enterprises Pty Ltd (the respondent) to restrain the respondent from continuing to use the trade mark "Kiwi Munchies" in relation to its chicken products. The applicant, which sold dried fruit snacks under the "Kiwi Munchies" trade mark, alleged that the respondent's use of the same mark on its chicken products constituted trade mark infringement and misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) and the *Trade Marks Act 1995* (Cth). The matter came before Terry Williams J in the Federal Court of Australia.

The primary legal issues before the court were whether the applicant had established a serious question to be tried regarding trade mark infringement and misleading and deceptive conduct, and whether the balance of convenience favoured the grant of an interlocutory injunction. Specifically, the court had to consider the likelihood of confusion or deception among consumers given the dissimilar nature of the goods and the potential for the respondent to suffer damage if an injunction were granted and later found to be unwarranted.

In determining whether to grant the interlocutory injunction, the court applied the principles established in *Australian Broadcasting Corporation v O'Neill*. His Honour considered the strength of the applicant's case, noting that the goods were vastly different and that the respondent had been using the mark for some time without apparent objection. The court found that the applicant had not demonstrated a strong likelihood of success on the merits, particularly concerning the issue of whether the respondent's use of the mark was likely to deceive or cause confusion. Furthermore, the balance of convenience was found to weigh against granting the injunction, as the potential damage to the respondent from an injunction, including disruption to its business and marketing, appeared greater than the potential damage to the applicant from the continued use of the mark.

Consequently, Terry Williams J dismissed the application for an interlocutory injunction.