Players Pty Ltd v Clone Pty Ltd & Ors

Players Pty Ltd (the applicant) sought to restrain Clone Pty Ltd and its directors (the respondents) from infringing its trade mark. The applicant alleged that the respondents had used a mark that was deceptively similar to its registered trade mark, thereby contravening section 120(1) of the *Trade Marks Act 1995* (Cth). The matter came before the Federal Court of Australia.

The primary legal issue before the court was whether the respondents' use of their mark constituted an infringement of the applicant's registered trade mark. This required the court to consider the degree of similarity between the two marks and the likelihood of deception or confusion among the relevant class of consumers. The court also had to determine whether the goods or services in relation to which the marks were used were of the same description as those for which the applicant's trade mark was registered.

In reaching its decision, the court applied the well-established principles for assessing trade mark infringement, focusing on the "imperfect recollection" of the ordinary consumer. The court undertook a visual, aural, and conceptual comparison of the marks. It considered the dominant features of each mark and the overall impression conveyed to the consumer. The court found that the marks were deceptively similar and that the goods were of the same description, leading to a real likelihood of confusion.

The court therefore found in favour of the applicant and made orders restraining the respondents from infringing the applicant's trade mark.