Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited

In the case of Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited, the court was called upon to determine whether the respondents' use of the word "Thredbo" in their business activities amounted to misleading or deceptive conduct under the Australian Consumer Law and if it constituted passing off. The appellants, who operated a village and resort in Thredbo, argued that the word "Thredbo" had a secondary meaning associated with their business and that the respondents' use of it was misleading or deceptive. The court was also required to decide whether the respondents' websites, domain names, or Facebook pages were similar enough to the appellants' to amount to misleading or deceptive conduct or passing off. Furthermore, the court examined whether the respondents breached a contractual restraint on the use of the word "Thredbo" and if the restraint constituted an unreasonable restraint of trade.

The court examined the meaning of the term "Thredbo" and whether it had a secondary meaning in the minds of consumers, which would have enabled the appellants to establish their claims under the Australian Consumer Law and for passing off. The court found that the appellants did not need to prove an exclusive right to use the word "Thredbo" in order to establish that it had acquired a secondary meaning. The court also examined the contractual restraint on the use of the word "Thredbo" and concluded that the restraint was unreasonable because it lacked a reasonable connection to the appellants' legitimate interests. The restraint was therefore void at common law.

The court dismissed the appeal and ordered the appellants to pay the respondents' costs. The court held that the restraint of trade was unreasonable because it lacked a reasonable connection to the head lessor's legitimate interests, such as the protection of its goodwill and trading reputation. The restraint was therefore void at common law. The court found that the appellants' argument that the word "Thredbo" had a secondary meaning was not supported by the evidence, and that the appellants' predecessors in title had created Thredbo as a village and resort in a previously undeveloped landscape. The court also found that the respondents' use of the word "Thredbo" was not similar enough to the appellants' websites, domain names, or Facebook pages to amount to misleading or deceptive conduct or passing off.