The Real Thing Food Supplements CC v Media Tag Pty Ltd

The appeal concerned alleged misleading or deceptive conduct and passing off under the Australian Consumer Law and general law, respectively. The appellant, The Real Thing Food Supplements CC, a South African manufacturer of health food supplements under the brand name "The Real Thing," alleged that the respondent, Media Tag Pty Ltd, had engaged in misleading or deceptive conduct by supplying Woolworths with locally sourced products bearing labels that included the initials "TRT" and later the words "The Real Thing." The appellant contended that these labels falsely represented that its goods were manufactured by or under the authority of the appellant.

The primary legal issues before the Full Court of the Supreme Court of New South Wales were whether the respondent had engaged in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law, and whether the respondent had passed off its products as those of the appellant. These issues hinged on whether the appellant had established a reputation in Australia with Woolworths, and whether Woolworths had relied on the respondent's labelling when purchasing the products. The appellant also argued that the primary judge had misread its pleading regarding its reputation and had erred in finding that the appellant needed to prove Woolworths' knowledge of the appellant and its products during the initial trial supply.

The Court dismissed the appeal, upholding the primary judge's findings. The reasoning focused on the appellant's failure to establish that Woolworths had been misled or deceived. The Court found that the appellant had not demonstrated that Woolworths possessed sufficient knowledge of the appellant and its products to be deceived by the respondent's labelling. Crucially, the appellant failed to prove that Woolworths relied on the respondent's labelling when making purchasing decisions, a necessary element for establishing both misleading or deceptive conduct and passing off. The Court concluded that the appellant had not established the necessary reputation in Australia with Woolworths to succeed on either claim.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.