Lever Bros v G Mowling and Son

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria concerning the registration of a trade mark. The application for registration by G. Mowling & Son was pending in Victoria when the *Trade Marks Act 1905* came into force. Pursuant to provisions in both the Victorian and Commonwealth Acts, an appeal from the Commonwealth Registrar of Trade Marks was referred by the Attorney-General to the Supreme Court of Victoria. Lever Brothers Limited opposed the registration, arguing that the proposed trade mark was calculated to deceive, having regard to their own registered and unregistered trade marks.

The legal issues before the High Court were twofold. Firstly, whether the reference of the appeal to the Supreme Court of Victoria was valid and, consequently, whether an appeal lay from the Supreme Court's decision to the High Court. Secondly, the substantive issue was whether the trade mark sought to be registered by G. Mowling & Son, a label containing the words "Mowling's Best" with a representation of three stars, and the words "Three Star" followed by a blank, was calculated to deceive within the meaning of the relevant trade mark legislation, when compared to Lever Brothers Limited's registered trade mark "Starlight" and their unregistered label featuring a female figure surrounded by stars and the word "Starlight".

The High Court held that the reference to the Supreme Court was authorised and that an appeal lay to the High Court. On the substantive issue, the Court found that the trade mark of G. Mowling & Son was distinctive and not calculated to deceive. The Chief Justice reasoned that ordinary persons of reasonable intelligence would not be deceived by the similarity, if any, between "Starlight" and "Three Star", nor by the visual elements of the labels. The Court affirmed the decision of the Supreme Court of Victoria.