(e) Mr Ross Brown
101 Mr Brown was called by Tabellz as an expert. Mr Brown is a practising hydraulic engineer who is engaged on a daily basis in the design of metal roof and gutter systems. He is also a licensed plumber, drainer and gasfitter and has had personal experience in the construction and installation of metal roofing and gutter systems. Mr Brown also has a law degree. He produced a report dated 9 November 2012 and also participated in the experts' joint report. Mr Brown was instructed to comment on the following questions in his report:
(i) Whether or not in your opinion the roof profile of that of Tabellz is visually similar to or could be said to be the same as Spanlines (sic) Double U Roof profile;
(ii) Whether or not in your opinion the gutter profile of that of Tabellz is visually similar to or could be said to be the same as the Spanlines (sic) gutter profile and whether;
(iii) Whether Tabellz roof and gutter profiles contain Spanline design features, and if so, what are they, and are they features common throughout the gutter and roof industry and not exclusive to Spanline;
(iv) Do the visual characteristics of the design of Spanlines Double U Roof profile roof sheets and the Spanline Gutter profile gutters create a secondary meaning in the minds of members of the relevant public which is associated with the name of Spanline, if so why, or if not, why not and if not what do members of the relevant public consider when purchasing roof sheets and gutters;
(v) In your opinion are Tabellz roof and gutter profiles materially different from the steel roof and gutters manufactured by Spanline, in particular would you kindly create a detailed drawing as is of the respective roof and gutter profiles of Tabellz and Spanline identifying their respective characteristics and features;
(vi) Any other relevant observations you may have as independent expert engineer.
102 The key matters arising from Mr Brown's report may be summarised as follows:
(a) Mr Brown annexed to his report a series of home improvement brochures published by companies such as Stratco, SpaceSpan, Apollo and Stramit which illustrate what those companies consider to be relevant in selling their products. Mr Brown emphasised that many of those brochures do not show individual building components - such as individual roofing spans - but rather highlight the finished product, including the roof sheeting when it is joined. He said this supported his view that consumers in the relevant class are interested in the overall finished product and not so much the individual components. I agree with that view;
(b) whilst accepting that the roof profiles of the Spanline and Tabellz products are at first glance "somewhat similar in nature", he added that it is not unusual in the metal roofing industry for manufacturers to produce similar products with minor variations which are said to give a competitive advantage;
(c) at [9.1.3] of his report Mr Brown summarised his opinion that the average purchaser of metal formed home improvements is generally less concerned with the profiles of the individual components and is more concerned with the overall visual aesthetic of a completed home improvement addition. Hence, "it is unlikely that in the majority of circumstances, the majority of end purchasers would be confused by the specific, various elements from a variety of manufacturers utilised in the construction of the final product, simply because the majority of customers are unlikely to be interested in such specific detail". I agree with and accept that evidence;
(d) at [9.1.4] Mr Brown stated that the "lack of commercial marketing importance of specific component profiles is confirmed by the general lack of specific roofing and gutter profile information in the various manufacturers marketing materials" annexed to his report, as opposed to "the prominence in those materials of completed structures rather than individual components". I agree;
(e) he stated at [11.1.1] that, while at first glance the two relevant products are "visually similar", Allform's product "contains sufficient technical differences to readily distinguish the material from that as produced by Spanline", by reference to colour, the additional ridges along the centre risers and end walls - which differences were highlighted by him in diagrams set out at the end of his report;
(f) he also stated that the Allform and Spanline roof profiles "share common features of many other "W" shaped roofing profiles used throughout the metal construction, roofing, home improvement and rainwater goods industry" ([11.3.1]) and that the general design features of such "W type" roofing profiles include:
a general "W" appearance, deep wide valleys, substantial ridging through the centre of the profile;
longitudinal ribbing in the base of the valley and top of the ridge; and
longitudinal ribbing on the top of the ridge and, sometimes pressed ribbing along the walls of the ridge;
(g) to demonstrate his view that manufacturers regard the "W" roof profile to be of a generic nature, he set out extracts from various suppliers which make reference to that style of roofing. These suppliers include Altec, Aussie Span and Apollo. Mr Brown set out the following extracts from Altec's advertising materials in relation to "W" roof profiles:
What is 'W' Profile roofing and how does it benefit?
'W' profile roofing brands are widely regarded as Australia's highest cyclone and wind rated roofing systems due to their special ability to resist sagging, leaking, bowing or splitting during severe weather conditions such as storms. This fatigue can be caused by intense wind pressure and the weight of torrential rain. Whilst the manufacturing process of the 'W; profile brands is far more intricate than 'Flat Pan' profile brands, strength, reliability and longevity is greatly enhanced.
…
The 'W' Profile roofing system is perfect for all areas that experience storms, and as such, are highly recommenced for South East Queensland and Northern New South Wales. (W33 - W50 wind rated)
Your Altec Design Consultants are the most professional in their field. They are extensively and continuously trained to ensure an excellent result correctly designed and correctly engineered. You will be surprised at just how easily and quickly an Altec Patio Design Consultant will make your desired home improvement come true.
(h) In his report, Mr Brown also set out the following photograph taken from Altec's brochure which shows a finished Altec structure about which Mr Brown was then cross-examined (see further below at [108]):
(i) Mr Brown also set out the following extract from advertising material produced by Patioland Parramatta, a New South Wales supplier/installer, which describes the merits of "W" style roofing as follows:
Patioland suggest using the W-Pan profile for its Pergolas, aluminium and Apollo patio and custom awnings for the following reasons:
W-Pan profile offers more structural strength and integrity and then (sic) flat profiles. This is because W profiles uses more material more square meter then (sic) flat profiles
W-Pan profile also offers lesser heat absorption then (sic) flat profiles due to the generation of a temperature gradient across the surface;
(j) while Mr Brown accepted that a person with experience in installation of metal roofs might consider that the two products have somewhat similar characteristics, he said that he thought it unlikely that the visual characteristics and similar profiles of the two products would "give rise to a perception by a client or other member of the public not specifically trained or experienced in architecture, building design, or the manufacture or installation of metal roofing… given that the specific nature and profiles of the various components utilised to manufacture the end product are rarely taken into account by the average "mum and dad" householder who tend to be the typical purchaser of these types of products". I agree with that view;
(k) equally significantly, at [11.4.2] Mr Brown commented that, "given the availability of other similar designs, and the fact that purchasers are generally viewing the material installed from ground level, viewing to above on a prefabricated fully constructed sample installation, usually at the manufacturers or installers display centre, it is further significantly more difficult to comprehend the total picture of the roof profile installed, with the underside of the roof simply looking like a continuous form of roof sheeting. As stated above, clients do not tend to look at these details but rather the overall product as a total package". I agree with that opinion;
(l) he further states at [11.4.3] that the lack of emphasis on promoting specific profiles indicates the lack of the importance of such matters to clients and that, as a matter of commercial reality, "if clients were significantly interested in this I would expect a greater number of manufacturers to provide commercial material indicating this much more prominently, which on information presently available it is not the majority of instances". I accept that evidence;
(m) at [11.4.4], Mr Brown identified the following matters, in descending order of importance, as the criteria which he considered are taken into account by purchasers of metal rainwater goods: price; overlook of a completed and finished product; colour; reputation of installer and supplier; geographical location of installer and, rarely, specific profiles of individual components making up the complete product. On the latter point he stated that "only architects, building designers, builders, roofing installers or roof plumbers have any interest in specific profiles of roof sheeting and metal gutters products". I agree with and accept that evidence; and
(n) in my view, Mr Brown's conclusion at [11.4.5] is compelling, namely that "it is my own experience that the visual characteristics of the specific roof or gutter profile are generally not considered by an average client lacking general industry knowledge and experience".
103 Among the materials attached to Mr Brown's report is a Stratco brochure dealing with verandas, patios, carports and sunroofs, which contains multiple photographs of finished products, but not of any individual building component. The brochure for "SpaceSpan" contains photos of both finished structures and individual spans (see a copy of the same material depicted in [83] above). Stratco's brochure also contains photos of individual elements of a building structure, including an item described as "Spacedek", which bears some - but not a strong - similarity to Spanline's roof sheet. The one-page Apollo brochure has a large photograph of a finished structure and also has a small photograph of two different roof sheets. The Stramit brochures contain photographs of both finished structures and individual roof sheets, none of which appear similar to Spanline's. Thus although some of the brochures contain photographs of individual roof sheets, much greater prominence is given to photographs of finished structures, the roofs of which all look generally similar to the naked and untrained eye.
104 In his oral evidence, Mr Brown explained his background as a hydraulic engineer and admitted that his expertise related mainly to the design of roofing etc and that he was no expert on aesthetics. He also made clear, however, that he had had experience up until about 10 years ago of actually constructing some of the structures which are relevant to the proceedings.
105 Mr Brown was asked about [9.1.1] and [9.1.3] of his report. He reiterated that, based on his experience, he considered that consumers are driven not by the aesthetics of individual components, but rather by the overall structure. When it was put to him that approximately two-thirds of the structure was the roof sheeting and that that was an important individual item, he said that in his experience the majority of customers were not interested in the roof product and only in the overall look of the finished product. I accept that evidence.
106 When shown physical samples of both the Spanline and Tabellz Double-U roof sheets, Mr Brown immediately identified them correctly by referring to the different ridging which appears on the centre riser and external walls. He said repeatedly that the two products were "very similar" although they were not the same. Various questions were put to him based on a distinction between primary and secondary features. He said that he had never heard of the language of "primary features" in the industry. He described the differences in height, width etc as "slight differences" in terms of the mathematics, which he confirmed he had measured using a micrometer which had a margin of error of .01 mm. He accepted that the angles on the two samples were similar and that they clipped together similarly (along with most other roof cladding products). He said that the central riser was important because it was fairly prominent.
107 Mr Brown confirmed that he had been instructed that there was a clear and prominent identification of the manufacturer on Allform's relevant structures, but that he had made no independent inquiries himself. He said that the Allform sticker would "look terrible" if it appeared on the roof sheeting itself. When it was put to him that a consumer would think that the sticker referred only to the beam, he quickly said that they would think that it referred to the overall structure. I agree.
108 Mr Brown was then shown Exhibit H (see [55] above), which had been tendered by Spanline on the basis that it was the "Altec Ausiespan" product (sic). Mr Brown said he had never seen the sample before. He said that he had asked Altec for a sample of its product but they had declined to give him one. By reference to figure 2 of his report, which showed a photograph of an Altec patio (see [102(h)] above), it was put to Mr Brown by Spanline's counsel that the roofing product used there may have been a Spanline Double-U roof sheet. Mr Brown said that that could be so. That question (which I assume was made on instructions) and Mr Brown's answer highlight how different roof sheets can look alike when viewed in a photograph showing the finished product.
109 I should interpolate at this point that it emerged that Exhibit H was mislabelled by Spanline. Exhibit H is not in fact a sample of any Altec product (and no hard sample, of any such product was in evidence), but is a sample of a steel roof sheet produced by Aussie Span.
110 Mr Brown was then asked various questions about the Apollo product, which is Exhibit G (see [55] above). He accepted that the Apollo sheet was flatter and wider than Spanline's. He also said that once all the different roof sheets were installed, they all look "pretty much the same". I agree with that observation.
111 It was put to Mr Brown in cross-examination that a consumer seeing Exhibits D and F in a constructed form would not be able to tell the two apart. His response was to say that he did not think that most consumers would be able to tell any of the competing products apart when a project was constructed. Again, I agree with and accept this evidence.
112 When asked yet again about the significance to consumers of the appearance of roofing in a structure, Mr Brown reiterated that it is the overall structure that matters, not the individual components, consistently with the views he expressed in his report.
113 Mr Brown was then taken to Spanline's national advertising brochures and the prominence given to the Double-U sheet in photographs in Spanline's advertising material, such as the October 2011 brochure (see [48] above). He was asked to comment on that in the light of [11.4.3] of his report which suggested that the majority of manufacturers do not promote individual components, but rather the overall look. He said that if Spanline was not within that majority, he did not quite understand why they took that approach because, in his view it was of no particular benefit to them in circumstances where customers were mainly interested in the appearance of the finished structure.
114 Mr Brown was also taken to [11.4.4] of his report and the main criteria in descending order which he felt impacted upon consumer choice, namely price, overall look, colour, reputation of the installer, geography and lastly, specific profiles. He rejected the proposition that, as far as Spanline is concerned, the Double-U product is at the top of the list. He said that that did not accord with his experience. I accept his evidence (see further below).
115 At Tabellz's request, Mr Way was recalled to deal with the confusion created by Exhibit H (see [109] above). He said that he had instructed his secretary to put the words "Altec Aussie Span" on Exhibit H. He then gave some rather confusing evidence about Altec having imported for some time in the past a roofing product from China, but then manufacturing its own product from a time which he was unable to identify precisely. No explanation was given why he instructed his secretary as he did in circumstances where the sample was not an Altec product.
116 Mr Way then said that figure 2 in Mr Brown's report (see [102(h)] did not show Spanline's roofing. That is inconsistent with the question which was put to Mr Brown by Spanline's counsel. Mr Way said that if further photographs were obtained with different lighting they would show it was not Spanline's roofing. He emphasised the importance of his expertise and experience in being able to differentiate roof sheets so readily. Mr Way's evidence underlined the difficulty for a person other than an expert being able to differentiate between different manufacturers' roof sheets when looking at a photograph of a finished product. In my view, Mr Way cannot be viewed as a member of the relevant class of consumers. Mr Way also confirmed that Spanline was currently in dispute with Altec about its entitlement to represent that it sold Spanline's roofing product.