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Intellectual property is a valuable asset of any business and can include the unique “brand” of a business. The value in intellectual property often involves an analysis of how the intended consumer will recognise and react to the visual image of a brand as has been analysed in a recent case on appeal to the Federal Court.
In the case of Verrocchi v Direct Chemist Outlet Pty Ltd, the appellant (Chemist Warehouse) appealed the previous decision handed down by the Federal Court of Australia (FCA). The appellants argued that the visual marketing used by the respondent (Direct Chemist) was substantially identical or deceptively similar to that of Chemist Warehouse.
The appellants sought to restrain the respondents from utilising a colour scheme and ‘get up’ that they argued interfered with their distinctive reputation. In doing so, the appellants claimed the primary judge had failed to successfully apply the necessary test by over-analysing the information, and failed to consider the perspective of the ‘ordinary consumer’.
To identify whether there was an error in the previous judgement, the Federal Court had to consider whether a consumer is likely to be misled or deceived by the similarity. The court held that simply causing a consumer to wonder about the origins of the two sources is not sufficient evidence. The court considered a multitude of factors including the geographical proximity, primary colour palette and various elements of visual marketing.
It was ultimately found that there was insufficient uniformity in the visual branding relied on by the appellant to support a claim for misleading of deceptive conduct, resulting in no relief from the respondent.