Passing Off- Australian Law- IRAC where needed

Question One

The manufacturer of garden furniture markets its product under the well-known brand name of ‘Lazeabout’. Although not a registered trade mark, the brand name is associated in the public’s mind with the manufacturer’s products. An importer of garden products attaches the word ‘Lazeabout’ to its products. What action would the manufacturer have against the importer? What would the manufacturer have to prove?

Question Two

A children's book was produced featuring fictitious characters called ‘Wombles’ who were primarily engaged in the collection of rubbish from the Wimbledon Common. The ‘Wombles of Wimbledon Common’ book became very successful and well known in the community. The owner of the copyright in the book was a company, Wombles Ltd, who also registered the word ‘Wombles’ as a trade mark for use on toys and clothing. The defendant was in the business of rubbish disposal. It registered the name ‘Wombles Skips’ (skips being large rubbish containers) as a company name and commenced trading under that name.

Advise the plaintiff, who plans to bring an action alleging:

passing off; and

breach of s 18 of the Australian Consumer Law

Question Three

A German manufacturer of beer decides to market its product in Australia. The product’s brand name is ‘Steinecker’ which has established a worldwide reputation. However, in Australia it is not generally known to the public at large, although connoisseurs of beer would know of it. The German company has registered the brand name ‘Steinecker’ under the Trade Marks Act 1995 (Cth). Information of the German manufacturer’s planned product launch is leaked to United Breweries Pty Ltd. It almost immediately brings out a product under the brand name ‘Reckstein’, a name which it does not attempt to register. The product is marketed in a uniquely shaped bottle, which is identical to the ‘Steinecker’ bottle currently used overseas, and which the German company had planned to use in Australia. The label used by United Breweries for its new beer has a picture of a German flag and a German beer stein on it. The contents are in fact the same as a beer previously marketed by United Breweries as ‘Bitter Brew’. The product gains a good market share and the German company’s four-week introductory campaign, once it is run, only succeeds in making a very small inroad into the Australian market.

What remedies, if any, would be available to the German company against United Breweries:

under passing off;

Under the CCA/ACL?

Can a trader have a reputation in a market where no business activities are carried on?

Has there been a misrepresentation?

Has damage been suffered?