SouthCorp Brands Pty Limited v Eastern tomorrow jinjiang Import and Export Co Ltd

SouthCorp Brands Pty Limited (SouthCorp) sought to restrain Eastern Tomorrow Jinjiang Import and Export Co Ltd (Eastern Tomorrow) from infringing its trade mark for "TWISTIES" and passing off its goods as those of SouthCorp. The dispute concerned Eastern Tomorrow's importation and sale of snack food products bearing the "TWISTIES" mark, which SouthCorp alleged was identical or deceptively similar to its registered trade mark. The matter came before the Federal Court of Australia.

The primary legal issues before the Court were whether Eastern Tomorrow had infringed SouthCorp's registered trade mark for "TWISTIES" under the *Trade Marks Act 1995* (Cth), and whether Eastern Tomorrow had engaged in conduct that amounted to passing off under the common law. In relation to trade mark infringement, the Court had to consider whether the mark used by Eastern Tomorrow was identical or deceptively similar to SouthCorp's registered mark, and whether its use was in relation to goods for which the trade mark was registered. For the passing off claim, the Court needed to determine if SouthCorp had established goodwill in its mark, if Eastern Tomorrow had made a misrepresentation likely to deceive consumers into believing its goods were associated with SouthCorp, and if SouthCorp had suffered or was likely to suffer damage as a result.

The Court found that Eastern Tomorrow had infringed SouthCorp's trade mark. It reasoned that the mark used by Eastern Tomorrow was indeed identical to SouthCorp's registered mark, and that the goods in question were of the same description as those for which the trade mark was registered. The Court also found that Eastern Tomorrow had engaged in passing off. It concluded that SouthCorp had established significant goodwill in the "TWISTIES" mark, that Eastern Tomorrow's use of the mark constituted a misrepresentation likely to deceive consumers, and that SouthCorp had suffered damage.

Consequently, the Court made orders restraining Eastern Tomorrow from infringing SouthCorp's trade mark and from passing off its goods as those of SouthCorp.