Orange Crush (Australia) Limited v Gartrell 1928] Hca 43

Orange Crush (Australia) Limited, the appellant, appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant manufactured and sold "Orange Crush" concentrate, which was used by licensed bottlers to create a beverage sold to the public. The respondent was accused of passing off a beverage not manufactured or sold by the appellant as "Orange Crush."

The central legal issues before the High Court were whether the appellant had the legal standing to bring a passing-off action, and if so, whether the respondent's actions constituted passing off. Specifically, the court had to determine if the name "Orange Crush" had acquired a secondary meaning identifying the appellant's goods, and if the appellant's business was sufficiently connected to the final beverage to justify a claim of injury.

A majority of the High Court, comprising Knox C.J., Isaacs, and Powers JJ., held that the appellant lacked the legal interest necessary to maintain the suit. Their reasoning was that the appellant only supplied the concentrate, which constituted less than one percent of the final beverage, and did not manufacture or sell the beverage itself to the public. The court found no sufficient connection between the commodity sold to the public and the appellant's business to establish that the beverage was the appellant's goods. Therefore, the appellant had not demonstrated that its legal rights had been infringed.

The appeal was dismissed, affirming the decision of the Supreme Court of New South Wales, though on different grounds. The majority found that the appellant had failed to establish that the public understood "Orange Crush" to denote goods for which the appellant was responsible, and thus had not proven a case of passing off. Gavan Duffy and Starke JJ. dissented, believing the judgment of the Chief Judge in Equity in favour of the appellant was correct.