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In the recent case of Scandinavian Tobacco Group Eersel BV v Trojan Trading Company Pty Ltd  FCAFC 91, the Scandinavian Tobacco Group [“STG”] failed to establish a claim that Trojan Trading Company Pty Ltd [“Trojan”] infringed trade marks which included the words 'Café Crème', 'Henri Wintermans' and 'Le Paz' which STG had registered under the Trade Marks Act 1995 (Cth) [“Act”].
In order to comply with the Australian plain packaging laws for tobacco products, Trojan repackaged the STG cigars with unofficial packaging bearing the STG’s trade marks.
This case required the Federal Court to determine whether Trojan’s conduct:
STG sought interlocutory relief on the basis that Trojan was applying STG’s trade marks to or in relation to cigars to be sold without the STG’s consent as the trade mark owner. STG claimed that Trojan had used STG’s trade marks within the meaning of section 120 of the Act, in relation to goods [cigars] of the same description as those which relate to STG’s registered trade marks.
The Court found that Trojan did not infringe STG’s trade marks – that a defence under section 123 of the Act could apply because STG had consented to the original application of its trade marks to the cigars.
The Court’s finding that Trojan had been given STG’s consent at the time of the original packaging of the cigars poses a threat to the amount of control held by all registered owners of trade marks over the packaging and quality of their goods.
Section 121 of the Act allows trade mark owners to display notices on goods which prohibit certain acts in relation to goods. Such a notice setting out restrictions on use of the trade mark could avoid the circumstances arising in this case.