PETER BODUM AS v DKSH AUSTRALIA PTY LTD (ACN 005 059 307) PDF

222 PETER BODUM A/S and Others v DKSH AUSTRALIA PTY LTD (ACN 005 059 307) FEDERAL COURT OF AUSTRALIA GREENWOOD, TRACEY and BUCHANAN JJ 9, 10 November 2010, 5 August 2011 — Melbourne FCAFC 98 Intellectual property — Passing off — Coffee plungers — Secondary reputation — Get-up — Shape and features of product — Whether features of coffee plunger distinctly tied to name and trade mark — Whether features of coffee plunger operate separately from name and trade mark — Whether trial judge failed to examine evidence of secondary reputation — Advertising and promotional material — Catalogues — Brochures — Newspaper and magazine advertisements — Television advertisements — Websites — Trade fairs — Retail displays — Relevance of subjective intention to pass off goods — Role of appellate court. Trade practices — Trade and commerce — Misleading or deceptive conduct — Whether not insignificant number of consumers likely to be misled or deceived — Whether rival trader had distinguished its own product — Distinction between ordinary, reasonable consumers and sophisticated consumers — Relevance of subjective intention to mislead or deceive — Relief — Declarations — Injunctions — Damages — (CTH) Trade Practices Act 1974 ss 52, 53, 80, 82, 87 — (CTH) Federal Court Act 1976 s 23. The first appellant, Peter Bodum A/S, is a Danish company which designs, manufactures and sells coffee plungers. The second appellant, Bodum (Australia) Pty Ltd, is its wholly owned Australian subsidiary. Since the late 1950s, the Bodum appellants have manufactured and sold a coffee plunger known as the Bodum Chambord Coffee Plunger. This coffee plunger has been advertised and sold in Australia since the mid-1980s. The Bodum appellants claimed that the photograph of the coffee plunger featured prominently on its packaging and that the coffee plunger was often displayed outside of its packaging. Consequently, they contended that they had acquired a reputation in the features and shape of the coffee plunger. From July 2004, the respondent, DKSH Australia Pty Ltd, began distributing and selling the Euroline Coffee Plunger in Australia. The Bodum appellants claimed that the Euroline Coffee Plunger had the distinctive shape and features of its coffee plunger. In proceedings in the Federal Court of Australia, they alleged that DKSH had committed the tort of passing off and had engaged in misleading or deceptive conduct in contravention of ss 52 and 53 of the Trade Practices Act 1974 (Cth). At first instance, Middleton J dismissed the Bodum appellants’ proceedings: see Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (2010) 84 IPR 542; FCA 23. They appealed against the decision to the Full Federal Court. Held, per Greenwood and Tracey JJ (Buchanan J dissenting), allowing the appeal: Per Greenwood J (Tracey J agreeing): (i) The trial judge failed to examine the Bodum appellants’ evidence for a secondary reputation in the shape and features of its coffee plunger: at ,. (ii) The trial judge erred in finding that the reputation subsists in Bodum’s brand and that, in the absence of the Bodum brand, there was no secondary reputation in the features and shape of the coffee plunger. The brand name or the trade mark and the images of the 92 IPR 222 PETER BODUM A/S v DKSH 223 product reinforce the existing association the consumer makes between the distinctive features of the coffee plunger and its source of origin: at , , , , ,. Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 81 IPR 354; 5 FCA 606, distinguished. (iii) DKSH did not distinguish its coffee plunger from Bodum’s coffee plunger. Simply by having the name “Euroline” at the bottom of the box, in circumstances where the name is arguably descriptive and where the coffee plunger is often displayed separately from the packaging, was insufficient to establish that DKSH had distinguished its product: 10 at –, , , ,. (iv) An ordinary, reasonable consumer is likely to be misled or deceived into thinking that the “Euroline” product was a Bodum product: at –,. (v) DKSH did not avoid liability for misleading or deceptive conduct on the basis that it applied a label to the packaging of its coffee plunger, given that the coffee plunger itself resembles closely Bodum’s coffee plunger with its established reputation. In any event, the 15 “Euroline” brand is not well known: at , , , ,. Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474; 30 IPR 337; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; FCAFC 157, applied. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (Parkdale v Puxu) (1982) 20 149 CLR 191; 42 ALR 1; 1A IPR 684; Dr Martens Australia Pty Ltd v Rivers (Aust) Pty Ltd (1999) 95 FCR 136; 47 IPR 499; FCA 1655; Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; 177 ALR 167; 48 IPR 257; FCA 876, distinguished. (vi) There was no subjective intention on the part of DKSH to pass off its goods as 25 those of the Bodum appellants or to mislead or to deceive ordinary, reasonable consumers: at ,. (vii) The Bodum appellants have established that DKSH committed the tort of passing off and engaged in misleading or deceptive conduct in contravention of ss 52 and 53 of the Trade Practices Act: at , ,. 30 Per Buchanan J (dissenting): (viii) It was open to the trial judge to find that there was no secondary reputation in the features of the Bodum plunger, separate from and independently of the Bodum trade mark or brand name: at –. (ix) Section 52 of the Trade Practices Act and the tort of passing off are not intended to protect designs which are copied but not protected by a relevant statutory scheme, in 35 circumstances where any consumer confusion is referable to an erroneous, preconceived belief that the first manufacturer of goods is entitled to a monopoly over their design: at ,. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; 1A IPR 684, applied. 40 (x) It was open to the trial judge to find that DKSH’s coffee plunger and its packaging prominently featured the “Euroline” trade mark, so as to distinguish its product from the Bodum coffee plunger: at. (xi) No appealable error has been demonstrated on the part of the trial judge in relation to his dealing with the evidence and the law. The trial judge was correct to dismiss 45 the claims for passing off and misleading or deceptive conduct: –. Appeal This was an appeal against a decision of a single judge of the Federal Court of Australia ((2010) 84 IPR 542; FCA 23) in relation to claims of passing off 50 and misleading or deceptive conduct contrary to the Trade Practices Act 1974 (Cth). 224 INTELLECTUAL PROPERTY REPORTS FCAFC D Catterns QC, S Goddard SC and M Hall instructed by Mallesons Stephen Jaques for the appellants. B Caine SC and G Dalton instructed by Arnold Bloch Leibler for the respondent. Greenwood J. Background The first appellant, Peter Bodum A/S (Bodum), is a Danish company founded in 1944. It is the holding company for the Bodum group of companies. It designs, manufactures and sells throughout the world, and in Australia, a range of household products including coffee plungers (and relevantly for the trial although no longer relevant on appeal, teapots). The second appellant is a wholly owned subsidiary of Bodum which since 2003 has sold or licensed for sale in Australia particular Bodum products although Bodum products have been otherwise sold in Australia through distributors since 1973. The third appellant is a Swiss company related to Bodum. It owns a number of Australian registered designs which it licenses to Bodum companies: at of the primary judgment. No question of infringement of any registered design arose in the proceedings. Unless otherwise relevant I will refer to the first two or primary appellants collectively as “Bodum”. The third appellant, Pi-Design AG, is an owner and licensor of particular intellectual property rights. For example, “bodum” is a registered trade mark of the third appellant. The respondent DKSH Australia Pty Ltd (DKSH), an Australian company, is a subsidiary of a Swiss company DKSH Holdings Ltd. DKSH imports into Australia and sells by wholesale, homewares and kitchen products including a coffee plunger the subject of Bodum’s suit before the trial judge. Bodum’s case, put simply, at trial against DKSH involved these contentions. Since 1958, Bodum or its predecessors in title have manufactured and sold a coffee plunger exhibiting particular features embodied in a coffee plunger described as the Bodum Chambord Coffee Plunger. From at least April 1986, Bodum made substantial sales in Australia of the Bodum Chambord Coffee Plunger exhibiting those features. The Bodum Chambord Coffee Plunger has been promoted and advertised widely in Australia in many ways including through publications such as Australian Gourmet Traveller (AB Vol 7, Tab 48, pp 2496, 2497 and 2497A), Donna Hay Magazine (AB Vol 7, Tab 45, pp 2480 and 2485) and Vogue Australia (AB Vol 7, Tab 44, pp 2476, 2477 and 2478), among others. The particular features and shape of the Bodum Chambord Coffee Plunger will be described more fully later in these reasons in examining the findings of the primary judge. For present purposes, an image of the Bodum Chambord Coffee Plunger exhibiting those features is attached to these reasons marked Sch 1. That image is described as App A in the reasons of the primary judge. I have exhibited the image to these reasons for ease of reference. Bodum further contended that the Bodum Chambord Coffee Plunger is packaged for sale in packaging that prominently depicts a photograph of the coffee plunger thus giving prominence and emphasis to the design features of the plunger within, rendering, it is said, the packaging, in a practical sense, transparent to the consumer. At the point of sale, the coffee plunger might be 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 225 exhibited in its packaging or, for ease of examination of the plunger by a potential consumer, standing outside and near its packaging or independently of its packaging. Bodum contended that by reason of these matters Bodum has acquired a 5 substantial and valuable reputation in the features of the Bodum Chambord Coffee Plunger and the distinctive shape of the Bodum Chambord Coffee Plunger with the result that the sale in Australia of coffee plungers which embody those features or a significant number of them and the shape of the Bodum Chambord Coffee Plunger, signifies or is likely to signify to consumers in Australia, that 10 such a coffee plunger is the Bodum Chambord Coffee Plunger or is made, promoted or sold by or with the licence, sponsorship or approval of Bodum: that is, relevantly associated with Bodum. Bodum contended that independently of the hierarchy of trade marks a manufacturer uses in connection with a product in the course of the owner’s 15 trade, such as the trade marks Bodum or Chambord, a secondary meaning or independent reputation can, as a matter of law, subsist in the features and shape of an article or the get-up for a product which operates to associate products of that shape or those features in the mind of consumers with a particular trader although it is not necessary that the consumer knows the name of that trader. 20 An iconic example of secondary meaning is said to be the independent reputation subsisting in the shape of the Coca-Cola bottle which associates carbonated cola sold in a bottle of that shape with a particular trader. The presence of the Coca-Cola trade mark on every bottle of that product sold, does not diminish, it is said by way of example, the secondary or independent reputation in the shape 25 (or features) of the bottle itself, signifying to consumers that the product is the product of that particular company. Whether a secondary meaning or independent reputation exists in the features or shape of a particular product or its get-up is, it is said, a question of fact to be determined having regard to all the relevant contextual circumstances. 30 Apart from the above analogical reference, Bodum relies upon the authorities, discussed in these reasons, as the source of the proposition. A brief observation should be made about the terms “secondary meaning” or “secondary reputation”. The question to be determined is whether the features or shape of the 35 Bodum Chambord Coffee Plunger have acquired a reputation and have become distinctive in the minds of consumers or potential purchasers of its maker. The reputation, if made out on the facts, is only “secondary” in the sense that it subsists in the features of the product itself rather than a reputation that may or may not be isolated to a brand, label, mark, trade mark or house mark. 40 Bodum contended that DKSH from July 2004 began to distribute and sell in Australia a coffee plunger described as the Euroline Coffee Plunger which embodies each of the features, or features that closely resemble the features, of the Bodum Chambord Coffee Plunger. Aspects of the features and shape of the Euroline Coffee Plunger will be described later in these reasons. For present 45 purposes, an image of the Euroline Coffee Plunger exhibiting its features and shape is attached to these reasons marked Sch 2. That image derives from the image of the Euroline Coffee Plunger depicted on the front and back of the box (packaging) for the product described as Ex B2(a) at trial. Bodum further contended that DKSH adopted, like Bodum, packaging 50 (Sch 2) giving prominent emphasis to a photographic representation of its coffee plunger; the Euroline Coffee Plunger is displayed at the point of sale either in its 226 INTELLECTUAL PROPERTY REPORTS FCAFC packaging or, for ease of examination by a potential consumer, outside (and away from) its packaging or, alongside the Bodum Chambord Coffee Plunger; the Euroline Coffee Plunger is not marked or engraved with any branding or labelling visible on the coffee plunger (other than the glass marked “Pyrex”) so as to distinguish it from the Bodum Chambord Coffee Plunger; and DKSH intended to mislead consumers by importing and selling a coffee plunger it knew to contain the features of the Bodum Chambord Coffee Plunger. Bodum’s central contentions Thus, the central contention was (and is, on appeal by way of rehearing, in the face of contended error) that DKSH by advertising and selling the Euroline Coffee Plunger with the features of the Bodum Chambord Coffee Plunger, “without labelling or distinguishing it adequately or at all” (para 35, statement of claim), falsely represented to consumers in Australia that the Euroline Coffee Plunger is the Bodum Chambord Coffee Plunger or is made, promoted and sold with the licence, sponsorship or approval of Bodum, and by so doing, consumers and retailers are misled and deceived as to the true position or are likely to be misled or deceived as to the true position in contravention of ss 52 and 53(c) and (d) of the Trade Practices Act 1974 (Cth). Bodum also contended that by reason of the conduct earlier described, DKSH engaged in passing off the Euroline Coffee Plunger as the Bodum Chambord Coffee Plunger or as a product relevantly sponsored or approved by Bodum, thus causing damage to Bodum’s goodwill and reputation subsisting in the Bodum Chambord Coffee Plunger. Bodum sought a declaration that DKSH’s conduct contravened ss 52 and 53(c) and (d); an injunction under s 80 of the Trade Practices Act restraining DKSH from importing into and selling in Australia the Euroline Coffee Plunger or any coffee plunger embodying each of the features of the Bodum Chambord Coffee Plunger; a declaration that DKSH by engaging in the relevant conduct previously described, engaged in passing off; an injunction under s 80 of the Trade Practices Act and s 23 of the Federal Court Act 1976 (Cth) restraining DKSH from making the representations (by conduct) and engaging in passing off in respect of the Euroline Coffee Plunger. Bodum also claimed damages under s 82 of the Trade Practices Act, compensation under s 87 of that Act and other orthodox remedies (subject to election) arising out of the contended passing off, although the proceedings before the trial judge concerned only the question of liability. DKSH’s response For present purposes, before examining the findings of the primary judge, it is sufficient to note that DKSH put each of Bodum’s central contentions in issue and although it accepted that the Bodum Chambord Coffee Plunger exhibited the pleaded features, it contended that Bodum’s coffee plunger when offered for sale has always been marked or engraved with important additional names, marks or descriptions not present in the Euroline Coffee Plunger; the packaging for each product is different; the use of “Euro Line” on the packaging differentiates the products; and the history of Bodum look-alikes in the market must be taken into account in determining whether DKSH’s conduct could be described as misleading or deceptive or likely to mislead or deceive consumers. DKSH supports the reasoning of the primary judge and contends that no error is demonstrated. 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 227 The relevance of the Playcorp proceedings The proceedings before the trial judge involved two separate proceedings heard together in which evidence in one was ordered to be evidence in the other. The three appellants were the applicants in the DKSH proceeding and 5 respondents in the second action, a proceeding commenced by Playcorp Group of Companies Pty Ltd and Playcorp Pty Ltd (collectively Playcorp). Each action was concerned only with questions of liability. In the Playcorp proceeding, the question was whether Playcorp had 10 engaged in conduct in contravention of s 52 of the Trade Practices Act or passed off their Baccarrat Venice Coffee Plunger and Baccarrat Devon Filter Teapot and saucer as and for the (contended) equivalent Bodum products, namely the Bodum Chambord Coffee Plunger and the Assam Teapot, respectively. Those claims and cross-contentions were the subject of an earlier settlement agreement. Bodum 15 contended that the settlement agreement precluded Playcorp from asserting that Bodum has an exclusive reputation and goodwill in the Bodum Chambord Coffee Plunger or that no secondary meaning subsists in the features and shape of the Bodum Chambord Coffee Plunger. Other questions arose for determination in relation to the settlement agreement and contended conduct by Playcorp leading 20 to it. The only questions alive on appeal concern the DKSH proceeding. However, a contextual reference to the Playcorp proceeding is necessary and important because some of the primary judge’s findings in the DKSH proceeding adopt a position as explained by the primary judge in dealing with a like issue in 25 the Playcorp proceeding. The findings of the primary judge The parties filed an agreed statement of facts settling out the features of the 30 Bodum Chambord Coffee Plunger and the Euroline Coffee Plunger. At of the judgment, the primary judge set out the agreed comparative features in the following table: Features Bodum Chambord Coffee Plunger DKSH Euroline Coffee Plunger Frame a frame, designed to hold a glass a frame, designed to hold a glass 35 beaker, consisting of: beaker, consisting of: (i) one upper horizontal band of flat (i) a chrome plated upper horizontal silver-coloured metal; and band with cut out sections; and (ii) four vertical bands of flat (ii) four vertical bands of flat silver-coloured metal which: silver-coloured metal which: (A) taper slightly at the point at (A) taper slightly at the point at which they are attached to the upper which they are attached to the upper 40 horizontal band; and horizontal band; and (B) extend and curve underneath the (B) extend and curve underneath the glass beaker to form four feet. glass beaker to form four feet. Beaker a clear glass beaker with a pouring a clear glass beaker with a pouring spout spout Handle a black curved handle attached to a black curved handle attached to 45 the frame by means of a stainless the frame by means of a stainless steel screw steel or chrome screw Lid a domed or rounded stainless steel a domed or rounded chrome lid lid Knob a spherical black knob above the lid a chrome spherical knob above the lid 50 Plunger a plunger device a plunger device 228 INTELLECTUAL PROPERTY REPORTS FCAFC Features Bodum Chambord Coffee Plunger DKSH Euroline Coffee Plunger Markings The name “bodum®”: The glass beaker has the word (a) is etched into a white label on “pyrex” permanently etched on it in the side of the glass beaker of the white Bodum Chambord Coffee Plunger; (b) is engraved on one of the vertical bands forming part of the metal frame; (c) is embossed into the black plastic lining of the lid; and (d) is printed on a translucent, removable sticker affixed to the glass beaker which is printed in red and white and also contains the words “THE Original” and “FRENCH PRESS” and “bodum®”. Instructions Instructions in both English and An instruction sheet is placed in the French are etched in white lettering glass beaker at the time of beneath the white label on the side manufacture of the glass beaker. When offered for sale in Australia, the Bodum Chambord Coffee Plunger includes within the glass beaker a “bodum®” branded instruction leaflet. The written description of these features (for either product) is apt to be a little antiseptic especially in the context of a claim of secondary meaning or independent reputation for the shape of a product said to be distinctive (and sometimes referred to as iconic) and thus it is important to look at the three-dimensional products tendered in evidence at the trial. Nevertheless, the image at Sch 1 also reveals the important features giving rise to the contended secondary meaning, which comprise, the horizontal band, the four tapered vertical bands attached to the horizontal band, the curvature of the bands underneath the glass beaker to create the feet of the cradle for the beaker, a domed or rounded lid, a prominent black curved handle attached to the frame (with a prominent screw fixing) and a plunger device. At , the primary judge set out the features over time of the packaging adopted by Bodum for the Bodum Chambord Coffee Plunger in the following table: Bodum Chambord Coffee Plunger Years Packaging Style November 1997 to White box with Garamond font, Bodum logo comprising red May 1999 box with white characters, and square instructional images on the side Approx May 1999 White box with Franklin font, Bodum logo comprising red to 2005 box with white characters, and round instructional images on the side Approx 2005 to Black box with Garamond font, Bodum logo comprising red approximately box with white characters, and numbered instructional images March 2008 on the side Approx March 2008 Predominantly black box featuring photo of product set to Present against a graphite background, Bodum logo comprising red box with white characters, and numbered instructional images on the side. At , the primary judge attaches as App C an image of “an example of some of the packaging style” of the Bodum Chambord Coffee Plunger. That image is also attached to these reasons marked Sch 3. The primary judge’s 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 229 example of Bodum’s packaging falls within category 3 or category 4 in the above table. Exhibit B18(c) at trial however is an example of the Bodum packaging for the Bodum Chambord Coffee Plunger at July 2004 when DKSH entered the market and began selling the Euroline Coffee Plunger. That style of packaging 5 was adopted by Bodum from May 1999 to a date in 2005. It is a white box depicting on the front, back and sides of the box the images depicted in Sch 4 to these reasons. At , the primary judge set out the features of the packaging adopted by DKSH for the Euroline Coffee Plunger from approximately July 2004 to the date 10 of judgment in the following table: DKSH Euroline Coffee Plunger Years Packaging Style Approx July 2004 to Black and white box featuring prominent photo of the 15 present. product with the words “Coffee” in red and “Plunger” in white at the top of the box. The brand “Euroline” appears at the bottom left hand corner of the box, with “EURO” in black and “LINE” in white with black outlining. An image of the DKSH packaging is Sch 2 to these reasons being the 20 DKSH packaging comprising Ex B2(a) at trial. It too has predominantly although not entirely a white (table background) depicting an image of the Euroline Coffee Plunger on the front and back of the box and the side images and words shown in Sch 2. The box is marked “Coffee Plunger” and “EURO LINE”. At trial, Bodum led evidence from an expert in industrial design, Associate 25 Professor Douglas Tomkin, the Head of the School of Design at the University of Technology, Sydney. At , the primary judge noted this evidence: Associate Professor Tomkin also provided expert evidence in relation to the comparison of the Bodum Chambord Coffee Plunger and the Euroline plunger, finding that they were so similar in their choice of materials, manufacturing techniques and 30 appearance that “[i]t is unlikely that one could be conceived without reference to the other”. Bodum submitted that such an impression is analogous to the one that a consumer, acting reasonably, would form. [Emphasis added.] The primary judge at then observed: 35 It is to be observed that the Euroline plunger has no branding on the product. The word Pyrex is etched on the glass beaker. It only described the kind of glass, and is no distinguishing feature. Pyrex sells replacement beakers, which can be used in most types of plungers including Bodum plungers and Euroline plungers. As to the qualitative nature of the differences in the Euroline Plunger, the 40 primary judge at noted this further evidence: While Associate Professor Tomkin noted the three main differences in the Euroline plunger (namely, cavities in the top support ring of the frame, the plunger knob being metallic, and the absence of the safety skirt), he regarded the overall visual difference between the two products as “small”. The three differences in his opinion had marginal 45 effect on the overall appearance. [Emphasis added.] As to the probative value of Associate Professor Tomkin’s expert evidence, the primary judge said this (at ): No objection was made to the admission of the evidence of Associate 50 Professor Tomkin. None of his evidence, in chief or under cross-examination, was controversial. The evidence focused attention on what the Court itself could observe 230 INTELLECTUAL PROPERTY REPORTS FCAFC about the similarities and differences in the products themselves. However, it is for the Court, in a case such as this, to determine for itself by way of overall impression, the significance of these similarities and differences once they have been identified. Although the primary judge noted at that it is for the court to determine for itself, as a matter of overall impression, the significance of the similarities and dissimilarities noted by Associate Professor Tomkin and “observ[able]” by the court, the fact of those similarities and dissimilarities identified at – seemed to be accepted by the primary judge. Bodum contended that the date for assessing the impugned conduct of DKSH for the purposes of passing off was July 2004 when DKSH first sold the Euroline Coffee Plunger. A question arose as to whether July 2004 (or February 2008 in the case of the Playcorp proceeding) was the correct date for the purposes of the s 52 cases. At , the primary judge noted in relation to both actions that in deciding whether the sale of a product involves misleading or deceptive conduct in contravention of s 52, the date when “the sale of the product commenced may influence the question as to whether it is the respondent that is the cause of the deception”. At , the primary judge said that he did not need to further consider the issue of competing dates relevant to that question because (relevantly for the DKSH proceeding) on the basis of the evidence: … Bodum clearly had a strong reputation even prior to 2004. It may have been reinforced by subsequent events. This was contended to be so by reason of the fact that certain copy products had been discontinued and had left the market, and Bodum continued to sell the same products for many years and increased the sale and promotion of its own products. These facts I accept and are supported by the evidence. [Emphasis added.] Specifically in relation to DKSH, the primary judge found at that the relevant date for determining passing off is July 2004 being the date when DKSH entered the market. At , the primary judge noted DKSH’s acceptance, as to s 52, that if the sale of the Euroline Coffee Plunger was misleading or deceptive at July 2004, the consideration that DKSH had inherited the Euroline Coffee Plunger from other corporations by assignment (and sales of it had been made commencing in 1988), would not affect the July and post-July 2004 finding, although it may affect the scope of the remedy. At , the primary judge framed the question to be answered arising out of his assessment of the legal principles at – in these terms: The question is whether the circumstances in which the accused products are presented to consumers are likely to mislead or deceive the ordinary reasonable shopper for housewares products, or coffee and tea makers, having regard to the reputation which Bodum has established in the particular presentation of the products which Bodum markets. At , the primary judge noted the factors informing the answer to the question in these terms: This depends upon a combination of visual impression and judicial estimation of the effect likely to be produced in the ordinary conduct of affairs, having regard to the reputation actually proved, in all the circumstances. It is not a side by side comparison. It is a comparison between the impression of Bodum’s products (including the packaging) retained in the ordinary reasonable customer’s mind and the impression made by the sort of consideration that the ordinary reasonable customer is likely to give to the accused product (including the packaging) before purchasing it. (authority cited) 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 231 At , the primary judge said this about the question posed (at ): In considering this question, one looks to all the information the potential customer may have prior to sale, which would include any advertising the potential customer may be exposed to even prior to gaining a foot in the trader’s door. However, the place and 5 time of sale will in most cases be the important place and time to analyse the question of whether there was a misleading impression. As to the contended reputation subsisting in the features and distinctive shape of the Bodum Chambord Coffee Plunger the primary judge said (at ) that: 10 … the question of any reputation that Bodum has (for instance) in the Bodum Chambord Coffee Plunger cannot be determined by looking at the Bodum Chambord Coffee Plunger features in isolation. The question must be considered by reference to all of the relevant circumstances, including all of the distinctive visual features of the Bodum Chambord Coffee Plunger, its branding, its markings, labelling and packaging 15 and the manner by which it has been advertised and exposed to potential purchasers of coffee plungers in Australia. (authority cited) The findings at of the primary judgment At , the primary judge summarised in a collective way findings 20 relating to both actions. So far as those findings at relate to DKSH, the findings are these. [Emphasis added.] First: … while I am of the view that the Bodum brand itself has a significant reputation in the 25 homewares/housewares market, I do not consider that Bodum has the secondary meaning or reputation in the Bodum Chambord Coffee Plunger … Second: … I consider that Bodum’s reputation is distinctly tied to its products being properly 30 labelled and sold in conjunction with reinforcing packaging and, significantly, by reference to the Bodum name. Third: … Bodum’s reputation does not exist in the naked Coffee Plunger features … (without its logo in place) alone. 35 Fourth: … If I am wrong about this, and if Bodum does have a secondary reputation in the features alone, then I am not satisfied that the accused products in any of the proceedings in the way they are packaged or exposed to potential customers in Australia 40 are sufficiently similar to give rise to the misrepresentation alleged by Bodum. At , the primary judge simply notes the categories of promotional material and advertising Bodum led in evidence of the reputation around the world, and more particularly in Australia, for the Bodum Chambord Coffee 45 Plunger. That evidence was set out by Bodum in a schedule in detail. As to actual sales and sales revenue, the data remained confidential and is not set out in the judgment although a confidential exhibit containing the data is before the Full Court. The primary judge found that sales of the Bodum Chambord Coffee Plunger in Australia from 1986 to 2009 “are extensive, 50 dwarfing the respective sales of Playcorp and DKSH”: at. [Emphasis added.] At , the primary judge noted that there had been “no retail advertising by 232 INTELLECTUAL PROPERTY REPORTS FCAFC Playcorp [of its coffee plunger or teapot in issue in that proceeding] … during 2008 of [or] 2009”. That finding is relevant to DKSH because, at the primary judge notes that “[a] similar picture exists in relation to the DKSH Euroline Coffee Plunger”. At , the primary judge found that: It is clear that there has been [a] vast amount of advertising of the Bodum brand and I find that Bodum had and has a significant reputation in Australia in that brand. [Emphasis added.] At , the primary elected to apply a “with or without test” and said, after noting the vast amount of advertising and significant Bodum “brand” reputation, “[h]owever, it is necessary to consider how this [the significant brand reputation] translates to a reputation in the Bodum Chambord Coffee Plunger … with or without its branding”. [Emphasis added.] At , the primary judge noted Bodum’s central contention that “the consistency, extent and duration of the sale and promotion of the Bodum products increased the likelihood that there will be a significant number of people to whom the features do have a signification for which Bodum contends”. [Emphasis added.] At , the primary judge makes this finding about that contention: I agree that there may be some such people, but very few. In any event, in the way that Bodum has marketed (by specific and consistent reference to its name and logo), the absence of such reference would readily lead to the view being held by consumers that the accused products are not part of the Bodum range. [Emphasis added.] The primary judge therefore found as a matter of overall impression at and that notwithstanding that the appearance of the Euroline Coffee Plunger could not be conceived in the mind of a reasonable consumer without reference to the Bodum Chambord Coffee Plunger (and one to the other) (at , and ), DKSH’s election (or commercial step) not to use or refer to Bodum’s name or logo in connection with the promotion and sale of its rival coffee plunger (presumably either on the box or on the product) would readily lead the cohort of reasonable consumers (that is shoppers, at ), seeking to engage in a possible purchase or shopping transaction (presumably carrying into that engagement a sense of imperfect recollection), to the view that the rival coffee plunger is not a Bodum Chambord Coffee Plunger. The primary judge found that all but a very few potential purchasers would be readily led to that view. The primary judge found that the absence of the Bodum name and logo in connection with the rival coffee plunger tells the reasonable consumer that the rival coffee plunger is not a Bodum product and thus no reasonable consumer is, or is likely to be, misled or deceived by the rival’s adoption of the features and shape alone, of the Bodum Chambord Coffee Plunger. It follows that passing off would thus not be made out either. The criticism of the findings at The appellants attack this finding and the findings at as an error of law in failing to give proper recognition to the jurisprudence on secondary reputation in features, shape and get-up and as a finding of fact unsupported by the evidence; a finding made without any examination or consideration (at least so far as the exposed reasons of the primary judge reveal) of the content of the vast 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 233 amount of advertising relied upon in support of the secondary reputation for the features and shape (not the brand); a finding that could not reasonably have been made had the advertising and promotional material been examined and considered; and, a finding made in disregard of the primary judge’s acceptance 5 of the evidence of Associate Professor Tomkin which, although accepted, was not then weighed in the balance in the dispositive resolution of the central question. Before examining those contentions, it is necessary to identify the remaining findings of the primary judge. At , the primary judge recognised that there will be a variety of 10 consumers who might seek to engage in potential purchase transactions. Some of them will not have been exposed to the Bodum Chambord Coffee Plunger at all. The primary judge accepted that others will have a knowledge of the features of the Bodum Chambord Coffee Plunger even if not by name. Some may have been exposed to copy products: at. As to those consumers having knowledge of 15 the features or exposed to copy products, the primary judge concluded at that: I do not consider that they would conclude that the accused products or any copy products would be part of the Bodum range rather than just “copies” or cheaper versions. 20 As to price, the primary judge found (at ): … The fact that the accused products in these proceedings are “just under” the price range of the Bodum products, does not confuse the consumer that they are part of the same range, but a cheaper version. The consumer would readily appreciate that 25 these differently packaged products are just that, cheaper, and would not necessarily assume any association with Bodum. No persuasive evidence was led by Bodum to demonstrate otherwise. [Emphasis added.] As to the steps taken by DKSH to distinguish its rival coffee plunger from the Bodum Chambord Coffee Plunger, the primary judge made this finding 30 (at ): The accused products were clearly packaged to distinguish them from Bodum, with no reference to the distinctive name or logo of Bodum. No evidence was led by Bodum of actual confusion of a consumer. [Emphasis added.] 35 The findings at of the primary judgment At , the primary judge expressed the view that if a consumer was familiar with Bodum or the Bodum product range itself, then the observation of Burchett J (in the context of the matrix of fact then before Burchett J in the Full 40 Court in Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; 177 ALR 167; 48 IPR 257; FCA 876 at (Koninklijke)) to the effect that “[t]he public is thoroughly accustomed to competing brands of almost identical products, which may or may not have some link” also applies to this case “even though the brands of the accused products are 45 not well known”: at. The point of distinction, of course, is that the Remington brand was “well-known in its own right and, in Australia, [sold] more personal care products but fewer electric shavers than Philips”: Burchett J at , Hill and Branson JJ agreeing. At , in that same context, the primary judge also cited an observation 50 made by Sundberg, Emmett and Hely JJ in Dr Martens Australia Pty Ltd v Rivers (Aust) Pty Ltd (1999) 95 FCR 136; 47 IPR 499; FCA 1655 at (Rivers) 234 INTELLECTUAL PROPERTY REPORTS FCAFC (although the primary judge mis-attributes the relevant paragraph to Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281; FCA 461 which is the decision of the primary judge, Goldberg J, in that proceeding heard together with the Bata Shoe, Rivers and Windsor Smith proceedings) that the suggestion that a potential purchaser would think that footwear marked with the trade marks and names of the respondents (“ah! Soul”, “Rivers” and “JJ Lester & Co Ltd”) and sold so marked might be thought to be footwear sponsored or licensed by Dr Martens or that Dr Martens would allow its own footwear to be marked with the respondent’s trade marks, was “fanciful” and “bizarre”, and that such an observation also applied to this case, even though DKSH’s Euroline brand was “not well known”. It should be noted, of course, that like Koninklijke, the marks or names of the respondents were well-known Australian brands. At , the Full Court said this: … It is to be recalled that the words on the sock of the Bata shoe are “JJ Lester & Co Ltd by Bata”. “Rivers” and “Bata” are well known Australian brands of footwear. Why would a potential purchaser of footwear labelled “Rivers” or “Bata” conclude that the footwear was in fact that of a rival trader? [Emphasis added.] In this context, it should also be recalled that DKSH’s Euroline Coffee Plunger had no branding on the product other than the glass mark “Pyrex” etched on the glass beaker and thus no use of the name or mark “Euro Line” or “Euroline coffee plunger” as a distinguishing cue or feature of the rival product (at and ) on the product. DKSH’s product is naked of any differentiating name, mark or title. An instruction leaflet as to the safe use of the rival product sits inside the rival product and can be seen through the glass on examination of the rival product: see of these reasons. Although the presence of well-known Australian footwear brands such as “Bata” or “Rivers” or the description “JJ Lester & Co Ltd by Bata” on footwear (reflecting the features of the Dr Martens’ footwear or get-up — the applicant’s footwear product in that case), positioned in the places where consumers would customarily look for a distinguishing brand (in the “sock” of the shoe and, more particularly, on the sole of the shoe where the price sticker is also located), resulted in the Full Court’s observation that the notion that consumers would be misled or deceived or be likely to be misled or deceived into thinking that the rival products so marked were sponsored, licensed or approved by Dr Martens, was “fanciful” or “bizarre”, a question properly arises as to whether such an observation applies in the circumstances of this case where the rival product (essentially indistinguishable in its features from Bodum’s product — at , , , and ) was not marked, etched on the glass, or otherwise engraved or labelled on the frame with any reference to a distinguishing name or logo and, in particular, the name or mark “Euro Line” or “Euroline coffee plunger”, which, DKSH says, as to the packaging, is a seminal point of differentiation between the rival products. Why would such an important point of differentiation not be endorsed on the product itself, unless the internal instruction leaflet was thought to serve that purpose? The answer, as a matter of inference, might be that the entry into the market by DKSH in July 2004 of a coffee plunger essentially indistinguishable from the appearance of the Bodum Chambord Coffee Plunger and unmarked, as to the product itself (but for an irrelevant Pyrex glass mark), would be likely to lead consumers attracted to the rival product by the features of the Bodum 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 235 product (handling the rival product and seeing nothing on it to suggest it was other than the product to which they had been attracted by the vast body of advertising), to the view that the rival product is the Bodum product. The use of the mark Euroline on the box for the rival product is discussed later in these 5 reasons. The primary judge regarded the use on the box of the “Euro Line” brand, although “unknown” by consumers, as decisive of differentiation especially as Bodum “goes out of its way” to use its own name and logo: at. Having regard to the application, in the primary judge’s view, of the observations of the Full Court in Koninklijke (and relevantly reinforced by the 10 particular remarks of the Full Court in Rivers) to the circumstances of this case (to the effect that consumers are thoroughly accustomed to competing brands of almost identical products which may or may not have some link), the primary judge concluded at that: … The knowledgeable consumer would expect to see the name and the logo of 15 Bodum on its products. This is how Bodum has in fact marketed its products for very many years. I am of the clear view that consumers are now sophisticated enough (at least in the relevant market here) to understand the concept of competing brands with no trade connection, even though there may be an element of copying. In fact, the similarity may put the consumer on guard to ensure that he or she takes care to purchase 20 “the original”. The evidence indicates that Bodum understood the need to (and did) educate the relevant market to beware of copyists, and to look for the “original” Bodum. [Emphasis added.] The appellants challenge this finding as reflecting appellable error. The finding, they say, is simply wrong and thus unsustainable. 25 The criticism of the findings at Bodum says that the vast body of advertising does not demonstrate that Bodum has educated consumers to expect to see the name and logo of Bodum on the Bodum Chambord Coffee Plunger. Rather, the vast body of promotional and 30 advertising activity over a period of 30 years has been directed to emphasising and giving prominence, they say, to the look or attractive force of the features and shape of its coffee plunger. Bodum contends that, unsurprisingly, the Bodum name or bodum® mark is used by Bodum in that material to connect and associate the product exhibiting those features, with its maker. Bodum contends 35 that the burden of the advertising material however is to mark out or render distinctive, features of the product, that will resonate with potential consumers. At the centre of the criticism of the finding at is the submission that the primary judge either did not look at the vast body of advertising material put in evidence and relied upon by Bodum as the foundation of its secondary 40 meaning or independent reputation for the features of the product, or alternatively, the primary judge failed to properly consider that evidence. Instead, it is said, the primary judge simply accepted that the body of promotional and advertising material was “vast” (thus obviating the need to examine it in total) and then, without considering that evidence in an exposed way in the reasons for 45 judgment, fell into factual error (adverse to Bodum) by finding that the promotional evidence all ultimately led to Bodum building an expectation in the mind of the consumer to see the Bodum name or logo on its coffee plunger and if, in the mind of the consumer, the product is to be regarded as a Bodum Chambord Coffee Plunger the mark or name must be there. Put another way, the 50 “brand itself” has a significant reputation (at and ); Bodum’s reputation is “distinctly tied” to its coffee plunger being properly labelled, packaged and 236 INTELLECTUAL PROPERTY REPORTS FCAFC sold “by reference to the Bodum name” (at ); in the absence of the “bodum” name or mark (at ) a secondary reputation does not subsist in the features or shape of the product; and, by force of this cultivated expectation, Bodum is “a victim of its own success” (at and ). The and matters are discussed at – of these reasons. For my part, I am satisfied that there is force in the contention of the appellants that the exposed reasons of the primary judge do not examine the body of evidence relied upon by them at trial as the foundation for their contention of a secondary reputation. It seems to me that the finding of the primary judge which, on the facts, is adverse to the appellants, required an examination of at least the emblematic examples of Bodum’s advertising said to powerfully demonstrate that although the product is advertised in conjunction with the Bodum name or mark, the burden of the advertising shows that it is directed to establishing the attractive force of, and distinction and reputation in, the shape and features of the Bodum Chambord Coffee Plunger. This is the foundation of the case brought to the court for determination on the question of whether the respondent has engaged in misleading or deceptive conduct or passed off, by conduct, its product as that of the appellants. The evidence of that case needs to be addressed and it falls to the court in the exercise of its appellate jurisdiction to look at the evidence and especially those examples which are said to be the most powerful examples that make the appellants’ case good. Although I have formed this view, it is not necessary to remit the matter to the primary judge to examine the promotional and advertising material although a determination of aspects of those matters is properly a “jury question” for the tribunal of fact (so too is the ultimate question of whether get-up so nearly resembles another as to be deceptive or likely to deceive) and does not cease to be a jury question on appeal before a plurality of judges: General Electric Co (of USA) v General Electric Co Ltd 1 WLR 729 at 738; 2 All ER 507 at 515 by Lord Diplock; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 387; 111 ALR 577 at 617; 25 IPR 65 at 105 (Interlego) per Gummow J (Black CJ and Lockhart J agreeing). Nevertheless, on questions such as these, as described by Lord Diplock, judges of appeal can apply their own assessments to the matter applying their own common sense, and the interests of justice require the material to be considered within the disposition of the appeal. In making these observations, I am conscious of the considerations informing the proper role of the court in the exercise of the appellate jurisdiction as discussed in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; FCAFC 157 at – (Red Bull), Weinberg and Dowsett JJ; SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1; 48 IPR 593; FCA 1821 at , French, Heerey and Lindgren JJ; Windsor Smith Pty Ltd v Dr Martens Australia Pty Ltd (2000) 49 IPR 286; FCA 756 at –, Sundberg, Emmett and Hely JJ. The grounds of appeal It is convenient in this context to note the grounds of appeal set out in the amended notice of appeal filed 8 July 2010. Apart from the general statement (ground 1) that the appellants appeal from the whole of the judgment of the primary judge, there are 15 grounds of appeal although the second and third last grounds are both numbered 14. I do not propose to recite and address individually 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 237 each of the 15 grounds of appeal. It seems to me that the grounds of appeal can be accurately framed in the following terms. The primary judge is said to have erred by: (1) holding that Bodum’s reputation in the features of its Chambord Coffee 5 Plunger are distinctly tied to and do not operate separately from Bodum’s name or trade mark; (2) reaching that determination by acting upon an error of law in holding that a secondary meaning or independent reputation does not subsist in the features of shape of the Bodum Chambord Coffee Plunger; 10 (3) reaching that determination by acting upon an error of fact in holding that a secondary meaning or independent reputation does not subsist in the features of shape in the Bodum Chambord Coffee Plunger when the vast body of advertising and promotional material leads to the conclusion that a secondary meaning or independent reputation does 15 subsist in the features of shape of the Bodum Chambord Coffee Plunger associating that product in the minds of consumers or potential purchasers with the manufacturer of the product; (4) reaching that determination without considering the promotional and advertising material or at least without revealing in the exposed reasons 20 the consideration of the promotional and advertising material; (5) having regard to all of the contextual circumstances relating to the features of the Bodum product; the features of the rival product; the evidence of Associate Professor Douglas Tomkin; the evidence of sale, display and promotion of the Bodum product and the rival product; the 25 evidence of the packaging adopted by each trader; the history of the packaging; and the totality of the get-up, the primary judge erred by finding that DKSH had differentiated and distinguished its rival product from Bodum’s product and that DKSH’s conduct did not and does not involve conduct which is misleading or deceptive of, or likely to 30 mislead or deceive consumers and nor does DKSH’s conduct pass off its rival product as a Bodum Chambord Coffee Plunger or a coffee plunger made, promoted or sold with the licence, sponsorship or approval of Bodum; (6) failing to find that DKSH fraudulently intended to pass off its rival 35 product as a Bodum product or a product relevantly associated with Bodum or that DKSH fraudulently intended to mislead or deceive consumers to that effect, having regard to, the similarities between the products; the inherently descriptive nature of the trade name adopted for the rival product, “Euroline”; the failure of DKSH to brand its rival 40 product until the late addition of a removable swing tag and sticker after the commencement of the proceedings; and, the evidence of Associate Professor Douglas Tomkin. So far as the grounds of appeal assert contended error in failing to have regard to the promotional and advertising material, counsel for the appellants was 45 asked, in the course of the appeal, to identify the critical or emblematic examples of the advertising material relied upon by Bodum to make good its proposition. An annotated schedule has been put before the Full Court which is the schedule put before the primary judge (now annotated to the appeal record). The appellants rely upon each and every example in the schedule and urge the court to look at 50 their evidence. I have critically examined virtually all of the examples in the schedule including each of the examples the subject of oral submissions which, 238 INTELLECTUAL PROPERTY REPORTS FCAFC in the main, concern the examples set out at – in the appellants’ outline of submissions although I have not confined my consideration of the promotional material to only those examples. Those matters are considered further in these reasons at –. The further findings of the primary judge At , the primary judge sets out the evidence concerning additional features, relied upon by DKSH, under and by reference to which the Bodum Chambord Coffee Plunger has been sold in Australia since 1986. They are these: the name “bodum®” presented in a stylised form in white on a bright red “flag”; the name Chambord; packaging which has been either predominantly white or black in colour; the words “The Original French Press”; a large red and white sticker affixed to the glass beaker bearing the words “the original French press” and the name “bodum®”; an instruction leaflet bearing the name “bodum®” and the words “French Press”; the permanent branding and instructions which appear on the Chambord Coffee Plunger product itself including: — the name “bodum®” engraved into the frame; — the name “bodum®” etched into the glass; — the name “bodum®” embossed on the black plastic skirt; and — (since 1998) safety/usage instructions in both English and French which are etched into the glass beaker in white lettering beneath the white label on the side of the glass beaker. As to the use of the Bodum name, the primary judge noted Mr Bodum’s evidence (Mr Jorgen Bodum is a director of the first appellant, Peter Bodum A/S) (at ): Mr Bodum gave evidence (which I accept) that Bodum had placed its trade mark on the packaging of all of its products and where any Bodum products were sold without boxes, they were sold by reference to the name “Bodum” either appearing on the product itself or by some other means. The primary judge also noted that from as early as the year 2000, Bodum placed a bright red and white sticker on the glass beaker of each Bodum Chambord Coffee Plunger proclaiming that the product is “the original French Press bodum®”. The primary judge noted that the packaging in which each Bodum coffee plunger is sold bears prominently in bright red and white the words “the original French Press”. It should be noted that this phrase can be seen on the front and back image in the right-hand corner of the box for the Bodum Chambord Coffee Plunger being Ex B1(a). However, it does not appear on the Bodum box being Ex B18(c) which is the form of packaging from 1999 until a date in 2005. Mr Thomas Fernando Perez was at the date of trial the president of Bodum USA and prior to that appointment had been managing director of Bodum Australia and remained at the date of trial a director of the second appellant, Bodum (Aust) Pty Ltd. At , the primary judge referred to the evidence of Mr Perez to this effect: Mr Perez acknowledged in cross-examination that the purpose of this emphasis on the Bodum Chambord Coffee Plunger as the “original” was to draw attention to its French heritage, to educate consumers to watch out for look-alikes and to distinguish its products from competitors’ look-alikes. 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 239 At , the primary judge noted Bodum’s contention that there is nothing inherent in any aspect of packaging that makes DKSH’s packaging distinctive of their product. Bodum contended that marks used on the boxes are of much less significance than marks on the products themselves. 5 As to that matter, the primary judge found (at ): I do not consider that the evidence shows that the packaging of the products in suit plays a subsidiary and insignificant role in the advertising, promotion and sale of the products. The packaging of the accused products is distinctive of the brand displayed and is different from the Bodum packaging. Bodum’s packaging may have 10 changed over the years, but the essential Bodum name and logo have been constant. The boxes of the products in suit have been used in many stores and they have been close enough physically to be connected to the product when out of the box, to be instructional and informative of the brand. Mr Perez acknowledged himself that a lot of attention was placed on Bodum’s gift boxes, as these helped promote and strengthen 15 brand awareness. [Emphasis added.] At , the primary judge noted Bodum’s submission that the evidence of retail displays of coffee plungers shows that displaying the products themselves is of primary importance in selling the products. As to the method of display in that context, the primary judge found (at and ): 20 I accept on the evidence than in most shops, the packaging as well as the products are on display in varying ways. However, the packaging is most commonly displayed behind the plungers … and there will in almost all cases be some products displayed out of the packaging but corresponding packaging will be present. In most cases (particularly in the larger stores) different brands are sold together, 25 with different packaging on display indicating the different brands. Where the Bodum product is sold alone, it is sold by reference (in one form or another) to the Bodum name or logo. Where an accused product is sold alone, this seemed to occur in the context of the packaging alongside. At , the primary judge noted Bodum’s contention that in the 30 hierarchy of sensory cues, it is the product that is of most importance to consumers and that consumers will pick up the product and look at it with the result that the features of prominence will be those that convey the secondary meaning, that is, the horizontal band, the tapered legs, the Bodum style feet and the handle and “a not insubstantial number of people will have this secondary 35 meaning by examining the product”. At , the primary judge noted Bodum’s further contention that when the consumer looks to purchase a coffee plunger with those features mentioned at , and if the consumer is only confronted with the DKSH Euroline Coffee 40 Plunger, he or she would be misled into thinking there is an association between the Euroline Coffee Plunger and Bodum. Bodum contended that the relevant deception would occur before the packaging would be able to influence the consumer otherwise and thus, for Bodum, the packaging adopted by DKSH “could not teach away from the secondary meaning” conveyed by the “features 45 of prominence” described at. As to those contentions, the primary judge found (at ): I do not agree. If the consumer was not aware of Bodum, or had not been exposed to the Bodum advertisements or promotional material, there is not the expectation of the kind relied upon by Bodum. A consumer aware of Bodum or exposed to the Bodum 50 advertisements or promotional material may be specifically looking for the Bodum product (even if not by name), but would be aware of copies and would be educated 240 INTELLECTUAL PROPERTY REPORTS FCAFC upon viewing the products for sale of the different brands by the packaging and presentation of the product. [Emphasis added.] At , the primary judge recognised that “obviously” the product will be available for the consumer to “actually examine” and that the practice of displaying the products out of their packaging is adopted because consumers “will want to see and touch the product they are buying”. Mr Perez gave evidence, noted by the primary judge, that there seemed to be three main reasons why retailers display the products outside their packaging. First, retailers aim to simulate the “home environment” in which the products are used. Second, many of the relatively new homewares concept stores in Australia have sought to “reduce the level of individual product branding so as to enhance the feeling of the store being unique to the customer”. Third, retailers seek to reduce the customer’s focus on price and increase differentiation of the products and build an association between the products and the individual store in which the goods are displayed out of the packaging. The primary judge accepted at Mr Perez’s evidence. Notwithstanding that, the primary judge observed that “the packaging is there for a purpose — to promote the brand”. The primary judge also said this (at ): … Further, the packaging of the various products is different and is associated with the respective physical product depicted on the packaging. On the evidence before me, the packaging (whilst prominently featuring the product itself) has a significant role to play in informing the consumer of the different brand by reference to each product. All the packaging is clearly labelled and suffıciently distinctive to distinguish the various products. [Emphasis added.] At , the primary judge found that Bodum’s explicit branding and the presence of the logo served to reinforce Bodum’s advertising message with the result that, at , a purchaser is “left in no doubt about the provenance of the Bodum Chambord Coffee Plunger”. At , the primary judge found that even though Bodum’s promotional material “other than in a store (for example as in magazines) may not include the packaging, the promotion occurs by reference to the name Bodum, and when sold on display, the Bodum Chambord Coffee Plunger … retain[s] the stickers, named etchings and instructions which promote the Bodum brand”. At , the primary judge considered that rival coffee plungers could properly be distinguished from other types of products of lesser price which might be the subject of an “impulse purchase” with the result that (at ): … A consumer would be expected to look at the products in suit carefully, and make a considered purchase after viewing the product and the packaging. This is a decision that would be made at the point of sale, even if promotional material gave rise to the impulse to seek out a coffee plunger in the first place. [Emphasis added.] As to the relevance and role of copyist plungers, the primary judge noted at that such plungers had been sold in the market for many years but that in recent years the ranks of copyist products have “thinned”. At , the primary judge noted the emphasis placed by Playcorp and DKSH on the presence of copyists in terms of the contended dilution of Bodum’s reputation. Rather than diluting Bodum’s reputation, the primary judge considered that the presence of copyists had the effect of reinforcing Bodum’s reputation. At , the primary judge said this: 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 241 While Playcorp and DKSH contended that the presence of copyists was said to dilute Bodum’s reputation, I am of the view that it would have had the inverse effect. It appears to me that there was little or no advertising of the copy products, and before me, only limited evidence of sales. To the extent that these copyist products were promoted for sale, these products were always prominently displayed with a mark such 5 as Avanti or Arcosteel. With the continued removal of the copyists from the market, a starker market has emerged, against which Bodum and the limited number of remaining coffee plunger manufacturers can be more distinctly seen. However, look-alikes have been in the market for some period of time (since the late 1980s) and consumers were and are aware of look-alikes. As I have indicated, Bodum itself taught consumers to 10 beware of imitations and look for the “original”. [Emphasis added.] The findings at and of the primary judgment As to the relationship between Bodum’s consistent advertising and promotion and the development of a reputation for its product, the primary judge 15 made this finding (at ): When viewed in the light of Bodum’s consistent and extensive promotion and sale over a significant duration, I have already indicated that the Bodum products must be considered to be well known and appreciated. Bodum’s presence and dominance has created a situation where it is a well known brand of some level of sophistication with 20 a separate and distinct identity from look-alike products. This separate identity — its get-up is never isolated from the Bodum Chambord Coffee Plunger. [Emphasis added.] Having made that observation at , the primary judge then further observed at that Bodum’s “well-known brand” and “separate identity” born 25 out of its “consistent and extensive” promotion and “sale” over a “significant duration” has the result that Bodum “could be said to be ‘a victim of its own success’”. In making that finding, the primary judge adopted the phrase “a victim of its own success” from the observations of Perram J in Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 81 IPR 354; FCA 606 at (Mars 30 Australia). In that case, Perram J observed that because the principal component of the Maltesers get-up is the highly stylised word “Maltesers” emblazoned across the box for the product, “it is highly unlikely that any ordinary consumer of chocolate confectionary could mistake something which is not called a Malteser for a Malteser” and “[i]n that sense, Mars is a victim of its own 35 success”. It followed for the primary judge that the “consistent and extensive” promotion over a “significant duration” of the Bodum Chambord Coffee Plunger resulting in the product being “well known and appreciated” as a “well known brand of some level of sophistication” with a “separate and distinct identity”, that is, “its get-up — is never isolated from the Bodum Chambord Coffee Plunger”, 40 results, as a question of fact, in the position that unless the Bodum name and logo is on the rival product embodying the features and shape (or perhaps the rival product’s packaging), no ordinary consumer of coffee plungers could mistake something which is not called a Bodum for a Bodum. That finding is further elaborated at in these terms: 45 In all of the Bodum advertising shown, it is clear that the Bodum logo is prominent as is the relevant brand name. Therefore, even prior to entering the trader’s door, the potential consumer may be aware of the product, and that the product is a Bodum. Upon entering the trader’s door, by the way the products are displayed, the potential customer is directed to the Bodum product, as distinct from the other brands. 50 If a brand other than Bodum is sold alone, the consumer has identified for him or her the brand name and identification, and would not assume any Bodum connection 242 INTELLECTUAL PROPERTY REPORTS FCAFC (whether by name or otherwise). A consumer would expect to see the Bodum mark or name, before making any association to Bodum. [Emphasis added.] The criticism of the findings at and Bodum attacks these findings at and on the footing that they compound the contended error in the findings at and that the secondary reputation for the features and shape of the Bodum Chambord Coffee Plunger is inextricably or “distinctly tied” to the Bodum name or mark whereas, it is said, the use of the name or mark Bodum simply provides an orthodox trade link to the point of origin of the product in a particular corporation, Bodum, rather than operating to diminish the secondary reputation in the features and shape of the product to the point where a rival might lawfully sell or offer for sale an indistinguishable rival product (in appearance) by ensuring the absence of any reference to the name or mark Bodum on or near or in connection with the indistinguishable product. Bodum contends that it is entirely counter-intuitive to long-standing well-understood commercial behaviour to think that the manufacturer of the product will not use one or more trade names or marks in the hierarchy of house or brand marks such as Bodum or Chambord in connection with the coffee plunger product in the course of trade and further contends that the use of those marks in that orthodox way reinforces, rather than diminishes, the secondary meaning or independent reputation for the features and shape of the product, as a product with such features but relevantly connected, in terms of origin, to a particular trader. The contention is that the mark serves as a link to origin not a tie to secondary reputation. It is explanatory of origin, not constraining of independent reputation. Thus, they contend, the orthodoxy of using a trade mark with a product exhibiting the features of the Bodum Chambord Coffee Plunger does not result in the secondary or independent reputation for the features and shape of the Bodum coffee plunger being reduced, in effect, to zero, in the absence of the name Bodum or the bodum® mark. The product, it is said, stands by its shape, distinctive or of repute, in its own right by virtue of its shape, as a coffee plunger of a particular trader, that happens to be known as Bodum, if known by the consumer by name at all (which, on the authorities, is not necessary as the primary judge determined at and ). To the same effect, see Reckitt & Colman Products Ltd v Borden Inc RPC 341 at 406 per Lord Oliver of Aylmerton. The notion of Bodum’s reputation for its Chambord Coffee Plunger being “distinctly tied” to the Bodum name is the subject of the further finding of the primary judge at in these terms: Bodum carefully and universally employs the Bodum name and logo — and it is this the consumer looks for and expects when seeking to purchase a Bodum product. Copying of many of the Bodum features At , in the context of a discussion of fraudulent intention, the primary judge made this finding: As in the Playcorp proceeding I am prepared to make the same assumptions relating to the adoption of a Bodum Chambord look-alike product by DKSH. The assumptions referred to at are assumptions described at in these terms: 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 243 I am prepared to assume in Bodum’s favour that there was a progressive and ultimate copying of many of the features of the Bodum products by Playcorp. Although the primary judge found that the progressive copying by Playcorp of many of the features of the Bodum Chambord Coffee Plunger did not 5 occur in a way that demonstrated Playcorp’s appropriation of Bodum’s goodwill, and that DKSH’s adoption of a Bodum Chambord Coffee Plunger look-alike as its rival product did not suggest a failure on DKSH’s part to exhibit care to distinguish its rival product from Bodum’s coffee plunger, the primary judge nevertheless accepted that DKSH had copied (having regard to the operation of 10 and ) “many of the features of the [relevant] Bodum products [that is, the Bodum Chambord Coffee Plunger]”. The Bodum product markings An examination of the Bodum Chambord Coffee Plunger being Ex B18(c) 15 reveals the following markings on the product itself. If the product is held in the right hand, the vertical band of flat silver, tapering to the top horizontal band immediately to the left of the handle, reveals a plainly visible engraved mark “bodum”. The mark “bodum®” is etched on the glass immediately adjacent to the handle in a way which gives some prominence to the mark as the etching is cast 20 and contrasted within a solid white block. Underneath the mark bodum is a sequence of warnings in capital letters which read: HOT FLUIDS MUST BE 25 HANDLED WITH CARE ALWAYS USE COARSE GROUND COFFEE 30 PRESS DOWN VERY GENTLY ALWAYS STIR BEFORE 35 PRESSING DOWN Those warnings are then repeated in French. Immediately to the left of the vertical band in which the name bodum is etched, is an adhesive sticker the top part of which is coloured red and the bottom 40 section is clear. In the top section the words, in the following approximate proportion, appear: THE 45 50 In the bottom section the words, in the following approximate proportion, appear: 244 INTELLECTUAL PROPERTY REPORTS FCAFC FRENCH PRESS bodum® A plastic “skirt” sits underneath the lid and on the back wall of the skirt appears the mark “bodum®”. Inside the coffee plunger is a leaflet which contains instructions for the use and particularly the safe use of the coffee plunger. The instructions are written in a range of languages. The front folded presentation page of the leaflet is marked in the following approximate proportion with these marks: FRENCH PRESS® The DKSH product markings The Euroline Coffee Plunger, Ex B2(a) has no marking on the product other than the Pyrex glass mark. However, the Euroline Coffee Plunger has within it an instructional leaflet and marked on the front and the back of the leaflet, in the following approximate proportion, are these words: Mr Perez gave evidence (AB 12, T 86, lns 25 and following) that Chambord was first used in relation to coffee plungers as part of the name Melior Chambord in the 1950s. The name Melior Chambord originated with a French company described in the proceedings compendiously as “Martin”. Bodum acquired Martin in 1991 and has since endeavoured in its promotional material to maintain a link with the French origins of the product. Mr Perez regarded Chambord as an important name. Bodum uses the name as a product line and to distinguish the coffee plunger from the product of competitors: AB 12, T 87, lns 25–45. Mr Perez accepted that a Bodum distributor had used the phrase “original Bodum Chambord plunger” to convey the idea that the product is the original product, not “some cheap copy” and, by reference to promotional material in 2007 (after July 2004), Bodum’s distributor had used the phrase “original Chambord” to tell customers that Bodum’s coffee plunger is the original Chambord coffee plunger: AB 12, T 100, lns 20–35. As to the words “French Press”, Mr Perez accepted that the use of those words in promotional material by Bodum was for the purpose of describing the Chambord line of products and in particular the Chambord coffee plunger. The words were used to convey the “French heritage of the Bodum Chambord 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 245 product”: AB 12, T 102, lns 1–7. Mr Perez gave evidence that Bodum also uses “French Press” to signify that its plungers come from no one else: AB 12, T 102, lns 26–7. At AB 12, T 117 and 118, Mr Perez gave further evidence about the 5 features of Bodum’s Chambord Coffee Plunger when removed from the box. Mr Perez accepted that the product is normally presented with the handle to the right as most people are right-handed and the reason the product is exhibited out of the box is so that people can handle the product if they wish to, feel the weight 10 of the product, assess its quality, determine whether the plunger moves easily and decide whether the product exhibits the elegance the consumer seeks: AB 12, T 117, lns 20–36. Mr Perez accepted that if the product is held in the right hand, it is easy to see the name Bodum adjacent to the handle and next to the fingers of the 15 person holding the product. As to the engraving of the name “bodum” on the vertical strap immediately to the left of the handle, DKSH’s counsel put to Mr Perez that a person would also be able to see the name Bodum on the strap. Mr Perez accepted in evidence that the engraved name could be seen, “yes, because I know where it is”: AB 12, T 118, lns 4 and 5. 20 It was put to Mr Perez that if a consumer held the product in his or her right hand, he or she would not fail to see the name “bodum” engraved on the strap. Mr Perez accepted that they probably would see the name “if they were looking for it”. It was also put to Mr Perez that if a consumer wanted to buy a 25 Bodum product, such a consumer would look for the Bodum name. Mr Perez agreed that such a consumer would look for the Bodum name if it was his or her intention to buy a Bodum product. Bodum contends, having regard to this evidence, that consumers within the cohort of consumers who might engage in a possible transaction for the 30 purchase of a coffee plunger, include those consumers who expressly intend to purchase a Bodum Chambord Coffee Plunger by name, looking for the product marked Bodum. Such a consumer will look for and seek out the name Bodum and when holding the product will be likely to find and see the Bodum name and mark endorsed upon it. Such a consumer embarking upon a possible consumer 35 transaction with that frame of reference would not be, or be likely to be, misled by the conduct of DKSH because such a consumer would reach an informed decision as to the particular product they want. However, Bodum contends that within the cohort of consumers seeking to 40 engage in a possible transaction is a group properly described as a not insignificant group (and thus not a trivial number of persons) who might seek out the possibility of purchasing a coffee plunger by reference to the distinctive features and shape of the Bodum Chambord Coffee Plunger, not conscious of or not looking for the Bodum name and perhaps having no immediate recollection 45 of the Bodum name if they ever knew it with any sense of real recollection. That group, it is said, is misled and deceived, or is likely to be misled or deceived, by the conduct of DKSH selling or offering for sale its rival coffee plunger embodying the features and shape of the Bodum Chambord Coffee Plunger and not marked with any distinguishing or differentiating name, mark or logo which 50 would otherwise, in the mind of the consumer, set it apart from the Bodum Chambord Coffee Plunger. 246 INTELLECTUAL PROPERTY REPORTS FCAFC As to the informed consumer seeking out a Bodum Chambord Coffee Plunger by name, Mr Perez accepted these propositions at AB 12, T 118, lns 40–6 put to him by counsel for DKSH: One thing that is perfectly plain is that a consumer is going to see the word “Bodum” if they want to look for the name “Bodum”. The next thing they’ll see is the red and white sticker that says “The Original French Press” and has the Bodum logo in red again. [Emphasis added.] And that sticker was put there I think you said in 2004 or 2005 for the purpose of communicating the originality or authenticity of this product. As to the packaging, it largely speaks for itself. However, those features require some explanation. Exhibit B18(c) (Sch 4) is the box for the Bodum Chambord Coffee Plunger at the moment in time when DKSH introduced its rival product into the market in July 2004. The front and back of the box contains a large scale photograph of the coffee plunger. Above it is the name Chambord and in the centre of the box is the Bodum trade mark in white letters against a red background. The background for the box on all sides and the top and bottom is white. The top of the box bears the Bodum trade mark, the word Chambord and in relatively small print the words, in the following approximate size: FRENCH PRESS® COFFEE MAKER Further aspects of the DKSH packaging As to the packaging for the rival DKSH product, Ex B2(a) also largely speaks for itself. It is previously described in these reasons and the image is Sch 2 to these reasons. It displays a large scale image of the rival product on the front and back of the box. At the top it bears the word “Coffee” in red on a black background and the word “Plunger” in white on a black background. Two-thirds of the front and back of the box is white. The words “Coffee Plunger” appear above an image of the rival product on the sides of the box. At the base of the front and back of the box and on each side are the following words in reasonably large text: Schedule 2 reveals the precise content and size of the image on the box and the relative position and size of the description “EURO LINE”. Exhibit B1(a) is Sch 5 to these reasons. It contains an image of the changed format of the Bodum packaging as earlier described in these reasons. Again, the image speaks for itself. It can be seen however that Chambord is given much greater emphasis along the side edge of the image on the front and back of the box. The Bodum trade mark is in the right-hand top corner and at the top of the side images in approximately the same size and proportion as it appeared on the original packaging. On the front and back of the box the words “THE ORIGINAL FRENCH PRESS” appear in red and white. 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 247 When the Euroline Coffee Plunger is exhibited for sale contained within its box, the consumer would see an image of the plunger, the general description “Coffee Plunger” and at the base the words “EURO LINETM”. When the product is displayed out of its box and positioned in front of the box, the general 5 description “Coffee Plunger” is readily apparent. The words “EURO LINETM” at the base of the box are either entirely obscured or partially obscured. If the product is displayed out of its box but set to one side of its box, the consumer would see all of the features marked on the box and may well associate a product adjacent to the box as the product depicted on the box. 10 When the Bodum Chambord Coffee Plunger is exhibited for sale contained within its box the features previously mentioned are, obviously enough, apparent. When the product is displayed out of its box and positioned in front of the box (in the “white version” prior to the change in 2005) the word 15 “Chambord” would be readily apparent although the trade mark bodum® is either entirely obscured or partially obscured. A consumer looking down on the top of the box would see the trade marks “bodum”, “Chambord”, and in lesser text, the words FRENCH PRESS® COFFEE MAKER. Similarly, a consumer looking down on the top of the Euroline Coffee Plunger box would see the words 20 “Coffee Plunger” and “EURO LINETM”. When the Bodum Chambord Coffee Plunger is exhibited outside of its box in the current format (Ex B1(a)) and positioned in front of the box, the mark “bodum®” remains readily apparent. The mark “CHAMBORD” in large text is 25 likely to be partially obscured although by reason of the size of the text it may well nevertheless remain quite prominent. At , the primary judge noted DKSH’s contention that the two issues of Bodum’s reputation on the one hand and the question of whether DKSH has made the alleged misrepresentations on the other hand, can only be considered 30 against the background of the following matters. In summary, they are these: since the early 1990s many companies have sold look-alike plungers in Australia and thus consumers are well aware of the existence of look-alike plungers; consumers are brand-conscious; Bodum has consistently presented its product by unique and distinct indicators of trade source including references to 35 “Chambord”, “French Press” and an appeal to the “French heritage” of its product and thus ordinary, reasonable and knowledgeable consumers will look for those indicators of origin; DKSH sells its rival product under and by reference to a prominent mark “Euroline” and an ordinary and reasonable consumer when considering a purchase of a Euroline plunger is confronted with the name 40 Euroline and could not reasonably believe that the rival product is a Bodum Chambord Coffee Plunger or a product in any way associated with Bodum; the only similarities between the product and the rival product are visual features said to be common to many plungers on the Australian market for 15 years; and, the Euroline plunger has none of the unique features of the Bodum product such 45 as the black safety skirt and lid lining or the French and English safety instructions. In addition, DKSH asserts that visual features of the rival product are absent from Bodum’s product and they include cutaway segments in the upper 50 horizontal band; a chrome-plated spherical knob rather than a black Bakelite knob with a raised rim around its equator in the case of the Bodum product; 248 INTELLECTUAL PROPERTY REPORTS FCAFC differences in the lid lining inside the rival product; the presence of the name Pyrex on the glass of the rival product; and, a gold “Made in Taiwan” sticker on the base of the rival product. In identifying at of the judgment the primary features relied upon by DKSH in considering the two questions mentioned above, the primary judge did not suggest that DKSH placed particular emphasis upon the instruction leaflet inserted inside the glass beaker of the rival product. Bodum submitted that the disposable leaflet inside the rival product is “easily capable of being lost, discarded and ignored” (at ) and in that sense the disposable leaflet is in the category of a feature of “marginal prominence and provides no information about the source of the plunger” (at ). That observation was also made in relation to the question of a swing tag attached to the rival product in October 2008 which was not taken into account by the primary judge because the relevant conduct commenced in July 2004. At , the primary judge noted Bodum’s contention that the principal feature of the packaging for the rival product was the photograph of the plunger; its close resemblance in that image to Bodum’s plunger; the adoption by DKSH of black and white livery for the packaging with words and numbers written in red reflecting thematic reference to the colours black, white and red used by Bodum. At , the primary judge further found that the packaging for each product was “sufficiently distinctive to distinguish the brands [and thus the products] to consumers”. As to the use of packaging in the course of DKSH’s trade, the primary judge found that since 1997 the Euroline Coffee Plunger has been sold in Australia in gift-box packaging under the Euroline name. The brand Euroline is a registered trade mark of DKSH launched in 1997 (at ) which has been applied to a range of imported housewares products including DKSH’s rival coffee plunger. Packaging has been designed for each product in the Euroline range not just the Euroline Coffee Plunger. That packaging was designed to be the packaging in which consumers would purchase the products in retail shops: at. At all times, DKSH sells its rival Euroline Coffee Plunger to retailers with its packaging: at. In 2000, the design of the packaging was changed to reflect the features depicted at Sch 2. The EURO LINETM trade mark is prominent on the packaging (at ) and is at least as large as the bodum® trade mark on Bodum’s packaging: at. At and , the primary judge made these further findings: … The photographs of in-store displays demonstrate that the EUROLINE trade mark is not concealed when the glass plunger is displayed in front of the packaging. Even if it was concealed, anyone interested in purchasing the plunger would reveal the packaging when they picked up the plunger. … As I have already indicated, it is common practice in the housewares industry for products to be displayed and sold in packaging that features a photograph of the product that is inside the packaging. When the plunger is displayed outside its packaging, the photograph and the name EUROLINE enables consumers to match the product and its packaging. Having regard to those observations, the primary judge found (at ): In context, I do not accept that the branding with the name “Euroline” as it appears on the box does little to distinguish the DKSH product. 92 IPR 222 PETER BODUM A/S v DKSH (Greenwood J) 249 At , the primary judge notes Bodum’s contention that the name or mark “Euroline” is inherently descriptive and not adapted to distinguish DKSH’s rival product. The name or mark EURO LINETM, simply describes, it is said, a product of European style or type whereas DKSH’s rival product is made in 5 Taiwan. Bodum contended that the brand “Euroline” had in fact failed to achieve any recognition among consumers. At , the primary judge found that “the Euroline brand is not well known”. 10 The primary judge further found (at ): … However, that is not to say that a potential customer will assume that this “unknown brand” is connected in someway to Bodum, particularly whether [when] Bodum goes out of its way to use its own name and logo, and features of the product are different. In any event, I consider the use of “Euroline” on the packaging does 15 indicate clearly a different brand. My earlier comments in relation to the Playcorp proceeding concerning consumer awareness of look-alikes are equally relevant here. [Emphasis added.] The reference to the Playcorp proceedings in this context seems to be a reference to where the primary judge found that consumers are aware of the 20 existence of look-alikes in the market; that consumers are aware of the copying of premium brands; and, consumers are aware that the source of this copying is not the corporation responsible for the lead or premium brand itself. It follows from and as relevantly applied to the DKSH 25 proceedings, that the primary judge was satisfied that consumers would simply regard the Euroline Coffee Plunger as a distinct and different product from the Bodum product and one not associated with the owner of the lead or premium Bodum brand itself. The ultimate conclusion of the primary judge is reflected at in these 30 terms:

PETER BODUM AS v DKSH AUSTRALIA PTY LTD (ACN 005 059 307) PDF

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