Verrocchi v Direct Chemist Outlet Pty Ltd

Verrocchi and Gance, two registered pharmacists, appealed against the primary judge's dismissal of their proceeding against Direct Chemist Outlet Pty Ltd (DCO). The appellants argued that DCO's storefront get-up, which included a bright yellow painted shop exterior with red and blue colours and a narrow blue band along the base, infringed on their secondary reputation in the colour or colour palette and other trade indicia, such as slogans like “Is This Australia’s Cheapest Chemist?” and “Prescriptions Up To 50% Off”. They claimed that DCO's storefront get-up was misleading or deceptive, as it was similar to the get-up used by the appellants in their Chemist Warehouse pharmacies.

The court was required to determine whether DCO's storefront get-up constituted misleading or deceptive conduct, and whether it infringed on the appellants' secondary reputation in the colour or colour palette and other trade indicia. The court also needed to consider whether DCO's get-up was sufficiently differentiated from the appellants' get-up and whether DCO intended to mislead or deceive the public.

The court found that the appellants had not established that DCO's storefront get-up was likely to mislead or deceive the public, or that it infringed on the appellants' secondary reputation in the colour or colour palette and other trade indicia. The court held that the overall impression created by DCO's get-up was not similar to the appellants' get-up, and that the differences between the two were sufficient to avoid any confusion in the minds of the public. The court also found that the appellants had not provided any evidence of copying or intention to mislead or deceive. Accordingly, the appeal was dismissed.

The court dismissed the appeal and ordered that the appellants pay the respondents' costs of and incidental to the appeal. The court held that no error had been identified with respect to the primary judge's findings and determination, and that the appeal did not succeed in establishing any grounds for setting aside the primary judge's decision. The court also found that the appellants had not demonstrated any exceptional circumstances that would warrant a departure from the usual costs order.