SociÉTÉ Des Produits NestlÉ SA and Anor v Christian and Anor (No.9)

Société Des Produits Nestlé SA and another (the applicants) sought to prevent Christian and another (the respondents) from using the mark "NESQUIK" in relation to certain food products. The applicants, who are the registered proprietors of the "NESQUIK" trade mark in Australia, alleged that the respondents' use of the mark constituted trade mark infringement and contravened provisions of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)). The matter came before Judge Manousaridis in the Federal Court of Australia.

The primary legal issues before the court were whether the respondents' use of the "NESQUIK" mark was likely to deceive or cause confusion among consumers, thereby infringing the applicants' registered trade mark. This involved an assessment of the similarity between the marks, the goods in question, and the relevant class of consumers. Additionally, the court considered whether the respondents' conduct amounted to misleading or deceptive conduct under the relevant consumer protection legislation.

Judge Manousaridis found that the respondents' use of the "NESQUIK" mark was indeed likely to deceive or cause confusion. The court applied the well-established principles for assessing trade mark infringement, focusing on the degree of visual, phonetic, and conceptual similarity between the marks, as well as the nature of the goods. The court determined that the respondents' products were sufficiently similar to those for which the applicants held the "NESQUIK" trade mark, and that the average consumer would likely be confused into believing that the respondents' products originated from, or were endorsed by, the applicants. This conclusion also led to a finding of misleading or deceptive conduct.

Consequently, the court made orders permanently restraining the respondents from using the "NESQUIK" mark in relation to their food products and awarded the applicants their costs.