SOCIÉTÉ Des Produits NestlÉ SA v Christian (No.13)

Société Des Produits Nestlé SA (Nestlé) and Christian were parties to proceedings in the Federal Court of Australia. The dispute concerned the alleged infringement of Nestlé's trade mark rights in the word "KIT KAT" by Christian's use of the mark "KIT KAT" in relation to confectionery. Nestlé sought interlocutory relief to restrain Christian's alleged infringement.

The primary legal issue before the Court was whether Nestlé had established a sufficient likelihood of success on the merits of its claim for trade mark infringement to warrant the grant of an interlocutory injunction. This required the Court to consider whether Christian's use of the "KIT KAT" mark was likely to cause confusion among consumers as to the origin of the goods, thereby infringing Nestlé's registered trade mark.

In determining this issue, Judge Manousaridis applied the well-established principles governing the grant of interlocutory injunctions, including the need to assess the strength of the applicant's case and the balance of convenience. The Court considered the evidence presented by both parties regarding the distinctiveness of Nestlé's "KIT KAT" mark and the potential for confusion arising from Christian's use of the same mark. The Court's reasoning focused on the likelihood of consumers perceiving a connection between Christian's goods and Nestlé, given the identical nature of the marks and the overlapping nature of the goods.

The Court ultimately granted the interlocutory injunction sought by Nestlé, finding that there was a serious question to be tried and that the balance of convenience favoured the grant of relief to prevent potential damage to Nestlé's trade mark reputation.