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Targetts Pty Ltd v Target Australia Pty Ltd

Targetts Pty Ltd v Target Australia Pty Ltd

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TARGETTS PTY LTD v. TARGET AUSTRALIA PTY LTD
No. TG1 of 1993
FED No. 259
Number of pages - 19
Trade Practices - Passing Off

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIAN DISTRICT REGISTRY
GENERAL DIVISION
Heerey J(1)

CATCHWORDS

Trade Practices - misleading and deceptive conduct - entry by large mainland trader into Launceston market - local trader having substantial reputation in same field of trade under a similar name and logo - nature of misleading and deceptive conduct - whether erroneous assumption of consumers - whether different styles of operation sufficient to negate assumption of connection between businesses - perception of local consumers - likely ways of deception - exercise of discretion by court - promotion of competition - Trade Practices Act 1974 (Cth) s.52(1).

Passing Off - existence of local reputation - likelihood of deception - whether actionable passing off.

Trade Practices Act 1974 (Cth) s.52(1)

Annand and Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165.

Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302.

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216.

McWilliam's Wines Pty Ltd v McDonald's Systems of Australia Ltd (1980) 49 FLR 455.

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR at 191.

Reckitt and Colman Products Pty Ltd v Borden Inc (1990) RPC 341 at 406.

Siddons Pty Ltd v The Stanley Works Pty Ltd (1991) 29 FCR 14 at 17.

Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177.

HEARING

LAUNCESTON, 5-7 April 1993

#DATE 26:4:1993

Counsel for the applicant: W J Martin QC and R Pearce

Solicitor for the applicant: Douglas and Collins

Counsel for the respondent: R C Macaw QC and B N Caine

Solicitor for the respondent: Corrs Chambers Westgarth

ORDER

THE COURT ORDERS THAT:

1. The respondent Target Australia Pty Ltd, by itself or its servants or agents, is restrained from using in connection with any business of retail sale of clothing, footwear or manchester products within 30 kilometres of the intersection of Charles and Brisbane Streets, Launceston

(i) the name "Target" and/or

(ii) the logo

(LOGO OMITTED)

2. The application be adjourned for further directions on a date to be fixed on seven days notice.

3. Liberty to apply is reserved.

4. The respondent pay the applicant's costs to be taxed, including reserved costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

Introduction

HEEREY J As its name might suggest, this case arise from a dispute between two traders using very similar names. The applicant Targetts Pty Ltd (Targetts) has for many years carried on a retail clothing and footwear business in Launceston. The respondent Target Australia Pty Ltd (Target) operates some 82 discount department stores throughout mainland Australia. It is about to commence trading in Launceston. Targetts claim that by so doing Target will contravene…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 259
Decision Date: 26 APRIL 1993

CaseChat Overview and Summary

In the matter of Targetts Pty Ltd versus Target Australia Pty Ltd, the Federal Court of Australia was presented with a dispute concerning potential misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). The applicant, Targetts Pty Ltd, is a Launceston-based retailer with an established reputation in the clothing, footwear, and manchester products market. The respondent, Target Australia Pty Ltd, a large national retailer, proposed to enter the Launceston market, using the name "Target" and a similar logo to that of the applicant. The applicant argued that this could mislead consumers into believing there was a connection between the two businesses, potentially harming Targetts Pty Ltd's reputation and business.

The primary legal issue before the court was whether the respondent's use of the name "Target" and a similar logo in the Launceston area constituted misleading or deceptive conduct under section 52(1) of the Trade Practices Act 1974 (Cth). The court had to consider whether such conduct could cause consumers to erroneously assume a connection between the businesses, and if the respondent's different operational styles were sufficient to negate this assumption. The perception of local consumers and the likely ways in which they might be deceived were central to the court's analysis. Additionally, the court needed to weigh the exercise of its discretion in promoting competition against the potential harm to the applicant's business and reputation.

In delivering its judgment, the court found that the respondent's use of the name "Target" and the similar logo was likely to mislead consumers into believing there was a connection between the two businesses. The court recognised that Launceston consumers might perceive the respondent's entry into the market as an association or affiliation with the established local retailer. The court emphasised the importance of protecting the applicant's reputation and business interests, as well as promoting fair competition. As a result, the court restrained the respondent from using the name "Target" and the specified logo within a 30-kilometre radius of the intersection of Charles and Brisbane Streets in Launceston. The application was adjourned for further directions, and the respondent was ordered to pay the applicant's costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The respondent Target Australia Pty Ltd, by itself or its servants or agents, is restrained from using in connection with any business of retail sale of clothing, footwear or manchester products within 30 kilometres of the intersection of Charles and Brisbane Streets, Launceston

(i) the name "Target" and/or

(ii) the logo

(LOGO OMITTED)

2. The application be adjourned for further directions on a date to be fixed on seven days notice.

3. Liberty to apply is reserved.

4. The respondent pay the applicant's costs to be taxed, including reserved costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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