SOCIÉTÉ Des Produits NestlÉ SA and ANOR v Christian and ANOR (No.2)

Société Des Produits Nestlé SA and another (the plaintiffs) brought proceedings against Christian and another (the defendants) in the Federal Court of Australia. The dispute concerned allegations of misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 (Cth) and passing off. The plaintiffs sought an interlocutory injunction to restrain the defendants from continuing certain advertising and marketing activities.

The primary legal issue before the court was whether the plaintiffs had established a sufficient likelihood of success on the merits of their claims to warrant the grant of an interlocutory injunction. This required the court to consider whether the defendants' conduct was likely to mislead or deceive consumers regarding the origin or nature of their products, and whether the plaintiffs had established a sufficient reputation in their own products to support a claim of passing off.

In determining the application for an interlocutory injunction, the court applied the principles established in *Australian Coarse Grain Pty Ltd v Palmer* and *Seven Network Ltd v News Ltd*. His Honour Judge Manousaridis considered the evidence presented by both parties regarding the alleged misleading representations and the potential for damage to the plaintiffs' goodwill. The court weighed the relative strengths of the parties' cases and the balance of convenience, including the potential harm to each party if the injunction was granted or refused.

The court ultimately refused to grant the interlocutory injunction. His Honour found that the plaintiffs had not demonstrated a sufficient likelihood of success on the merits of their claims to justify the extraordinary remedy of an interlocutory injunction at that stage of the proceedings.