Players Pty Ltd v Clone Pty Ltd & Ors

Players Pty Ltd (the plaintiff) brought proceedings against Clone Pty Ltd and two other defendants (the defendants) in the Supreme Court of New South Wales. The dispute concerned allegations of misleading and deceptive conduct in contravention of section 18 of the Australian Consumer Law (ACL), and passing off. The plaintiff sought an injunction to restrain the defendants from continuing the alleged conduct.

The central legal issues before the court were whether the defendants' conduct constituted misleading or deceptive conduct under the ACL, and whether the plaintiff had established the tort of passing off. Specifically, the court had to determine if the defendants' representations about their products were likely to mislead or deceive consumers as to the origin or association of those products with the plaintiff's well-known brand.

In his judgment, Heydon J considered the evidence presented by both parties regarding the marketing and presentation of the defendants' goods. His Honour applied the established principles for assessing misleading or deceptive conduct, focusing on the likely effect of the conduct on a significant number of consumers. The court also examined the elements of passing off, requiring proof of goodwill, misrepresentation, and resulting damage. The judge found that the defendants' conduct was indeed misleading and deceptive, and that the plaintiff had established a sufficient degree of goodwill and misrepresentation to succeed in its passing off claim.

Consequently, the court made orders granting the injunction sought by the plaintiff, restraining the defendants from engaging in the conduct found to be misleading, deceptive, or constituting passing off.