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  • The fact that a competitor has copied your client’s trade indicia does not necessarily establish a claim for misleading and deceptive conduct in breach of s 18 of the Australian Consumer Law.
  • Courts will consider whether an applicant has established a reputation in its trade indicia, which can be difficult to prove if the elements of an applicant’s get-up are in common use or the applicant has used the elements in an inconsistent manner.
  • Even if a respondent has copied elements of an applicant’s get-up, courts will consider whether the respondent intended to mislead or deceive and whether the copying engaged in by the respondent actually misleads or deceives consumers before making a finding.

‘My competitor’s copying my image! Can’t we stop them from doing that?’

The sentences above are ones commonly spoken in many a solicitor’s office as clients and solicitors try to navigate the line between what is acceptable competition and what is passing off/misleading and deceptive conduct pursuant to s 18 of the Australian Consumer Law.

The recent case of Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234 offers a warning that even in a case where there is evidence of a competitor copying the trademark and get-up of another party, such evidence is not conclusive in establishing misleading and deceptive conduct.

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