Levi Strauss & Co v Vivat Holdings Plc

Levi Strauss & Co and Vivat Holdings Plc were parties to proceedings in the Federal Court of Australia concerning alleged trade mark infringement and passing off. Levi Strauss & Co, the owner of registered trade marks for its distinctive "batwing" logo, alleged that Vivat Holdings Plc had infringed these marks and engaged in passing off by using a similar logo on its clothing products.

The Federal Court was required to determine whether Vivat Holdings Plc's use of its logo constituted trade mark infringement under the *Trade Marks Act 1995* (Cth), specifically whether the impugned logo was substantially identical or deceptively similar to Levi Strauss & Co's registered "batwing" trade marks. Additionally, the court had to consider whether Vivat Holdings Plc's conduct amounted to passing off, requiring proof that Levi Strauss & Co had established goodwill in its logo, that Vivat Holdings Plc had made a misrepresentation likely to deceive or confuse consumers into believing its goods were associated with Levi Strauss & Co, and that Levi Strauss & Co had suffered or was likely to suffer damage as a result.

The court's reasoning focused on a detailed comparison of the respective logos, assessing the visual and conceptual similarities and differences in light of the relevant legal tests for infringement and passing off. The court considered the overall impression created by each logo, the nature of the goods in question, and the likely perception of the ordinary consumer. The legal principles applied included the established tests for substantial identity and deceptive similarity under the *Trade Marks Act 1995* (Cth) and the common law principles of passing off, which require a misrepresentation causing damage to goodwill.

The court found that Vivat Holdings Plc's logo was not substantially identical or deceptively similar to Levi Strauss & Co's registered trade marks, and therefore, there was no trade mark infringement. Furthermore, the court determined that Vivat Holdings Plc's conduct did not amount to passing off, as it was not satisfied that a misrepresentation likely to deceive or confuse consumers had been established. Consequently, the court ordered that the application by Levi Strauss & Co be dismissed.