New South Wales Dairy Corporation v Murray Goulburn Co-Operative Co. Ltd

CATCHWORDS

PRACTICE AND PROCEDURE - Injunction - Application for interlocutory order - Claim partly dependent upon alleged infringement of trade mark - Test to be applied: "prima facie case" or "serious question to be tried".

TRADE MARKS - Claim that brand name adopted by respondent is

deceptively similar to registered trade mark of applicant -

Name used by respondent itself a registered trade mark - Claim by applicant to have respondent's mark removed from register -

Proper approach by Court to that claim in considering
appllcation for interlocutory order.
TRADE PRACTICES - Alleged misleading conduct - Similar brand

names - Likelihood of consumers being misled - Relevance of
dissimilarities in packaging and target market - Distinction
between visual and aural similarity.

Trade Marks Act 1955, 66.23, 58, 62. Trade Practices Act 1974, 66.52, 53.

Wilcox J
Sydney
8 September 1988

NSW G.1156 of 1988

NEW SOUTH WALES DAIRY CORPORATION V MURRAY GOULBURN
CO-OPERATIVE CO LIMITED

CaseChat Overview and Summary

The case of New South Wales Dairy Corporation versus Murray Goulburn Co-Operative Co. Ltd was heard in the Supreme Court of New South Wales. The plaintiff, New South Wales Dairy Corporation, brought an application for an interlocutory order against the defendant, Murray Goulburn Co-Operative Co. Ltd, asserting that the defendant's use of a brand name was deceptively similar to the plaintiff's registered trademark, potentially misleading consumers. Additionally, the plaintiff sought the removal of the defendant's trademark from the register. The case also involved allegations of misleading conduct under the Trade Practices Act 1974.

The court was required to decide several key legal issues. Firstly, the appropriate standard to apply in granting an interlocutory injunction: whether the plaintiff needed to demonstrate a prima facie case or merely a serious question to be tried. Secondly, the proper approach to assessing claims of trademark infringement when both parties held registered trademarks with similar names. Thirdly, the relevance of packaging and target market differences in determining whether consumers were likely to be misled. Finally, the distinction between visual and aural similarity in trademarks.

Justice Wilcox found that the plaintiff had not established a prima facie case for the grant of an interlocutory injunction. The court emphasised that an interlocutory injunction should only be granted if the plaintiff can demonstrate a serious question to be tried. The court considered that the trademarks in question, while similar, had notable differences in their aural and visual components, and the target markets were distinct. The packaging differences also played a role in mitigating the likelihood of consumer confusion. Consequently, the court declined to grant the injunction or order the removal of the defendant's trademark from the register. The application for interlocutory relief was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Proper approach	by Court to that claim in considering
appllcation for	interlocutory order.
TRADE PRACTICES	- Alleged misleading conduct - Similar brand

NEW SOUTH WALES DAIRY CORPORATION	V MURRAY GOULBURN
CO-OPERATIVE CO LIMITED