Schweppes Ltd v E Rowlands Proprietary Ltd

The case of *Schweppes Ltd v E Rowlands Proprietary Ltd* was heard by the High Court of Australia on appeal from the Supreme Court of New South Wales. The dispute concerned allegations by Schweppes Ltd (the plaintiffs) that E. Rowlands Proprietary Ltd (the defendants), rival soda water manufacturers, had infringed their registered trade mark and engaged in passing off. The plaintiffs' registered trade mark consisted of a red serrated seal with two overlapping shields, suspended by a ribbon, which they affixed to their soda water bottles. The defendants used a red seal label on their bottles, which the plaintiffs contended was substantially identical or so nearly resembled their trade mark as to be likely to deceive purchasers.

The primary legal issue before the court was whether the defendants' red seal label infringed the plaintiffs' registered trade mark under section 53 of the *Trade Marks Act 1905*. This section stipulated that infringement occurred if a mark was substantially identical with a registered trade mark or so nearly resembled it as to be likely to deceive. A secondary issue was whether the defendants' actions constituted passing off their goods as those of the plaintiffs.

The High Court, affirming the decision of the Chief Judge in Equity, held that the defendants' mark did not infringe the plaintiffs' trade mark. The court reasoned that the question of infringement, particularly under the "likely to deceive" limb of section 53, required consideration of the whole of the marks or designs upon the goods, not merely a comparison of the disputed elements in isolation. The court found that when the defendants' red seal was viewed in conjunction with their neck label, which clearly displayed "Rowlands' Soda Water" in large letters, there was no substantial resemblance likely to deceive a reasonable purchaser. The court also noted that the letters "E.R." used by the defendants were their initials and predated the plaintiffs' trade mark registration. The appeal was dismissed.