General principles - misleading or deceptive conduct provisions
58 There is no dispute that the principles applicable to s 52 of the TPA and s 18 of the ACL are the same. The applicable principles relevant to a case regarding the alleged taking of the trade indicia (including a trading name) of a trade rival are set out in S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354; ('S & I Publishing') at FCR 362-3 per Hill, Nicholson and Emmett JJ, adopting with approval what Hill J said in Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431 at 440-441. The relevant principles were restated in S & I Publishing as follows:
1. There will be no contravention of s 52 unless the error or misconception which occurs results from the conduct of the corporation and not from other circumstances for which the corporation is not responsible.
2. Conduct will be misleading and deceptive if it leads into error.
3. Conduct will be likely to mislead or deceive if there is a "real or not remote chance or possibility" of misleading or deceiving regardless of whether it is less or more than 50 per cent.
4. Conduct causing confusion or uncertainty in the sense that members of the public might have cause to wonder whether the two products or services might have come from the same source is not necessarily misleading and deceptive conduct.
5. In a case such as the present, an applicant must establish that it has acquired the relevant reputation in the name or get-up such that the name or get-up has become distinctive of the applicant's business or products.
6. Conduct may be misleading or deceptive or likely to mislead or deceive notwithstanding that the corporation said to engage in that conduct acted honestly and reasonably and did not intend to mislead or deceive. Logically, a finding that conduct had been intentionally engaged upon will be irrelevant in determining whether that conduct is misleading or deceptive. It may perhaps be imagined that conduct engaged upon with the intent to mislead or deceive may fail in its purpose and not be found misleading or deceptive. Nevertheless, where the intention to mislead or deceive is found, it logically would be likely that a court would more easily find that the conduct was misleading or deceptive.
7. In many cases it will be necessary to consider the class of persons to whom the representation was directed...
8. There is no proposition of law to the effect that intervention from erroneous assumption between conduct and misconception destroys the necessary chain of causation with the consequence that the conduct cannot be regarded as likely to mislead or deceive.
9. The test of whether conduct is misleading or deceptive or likely to mislead or deceive is an objective one for the court to determine. It is ultimately a question of fact.
(citations omitted)
59 Justice Greenwood (with whom Tracey J agreed) in Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 ('Bodum') identified other principles to be applied under s 52 of the TPA in the context of a trade indicia (as opposed to a trade name) case, as follows (from [202]-[209]):
[202] …[A] rival trader is entitled to enter the market and copy precisely the product of another and seek to take some of its market share (in the absence of any infringement of a formal intellectual property right), so long as the rival does not mislead or deceive the public or pretend, by conduct, that its goods are the goods of another…
[203] Whether impugned conduct conveys the making of a representation is a question of fact to be determined having regard to all the contextual circumstances within which something was said or done. When that assessment is being made in the context of conduct said to involve representations to the public at large (or a section of the public) such as prospective retail buyers of a product sold by a respondent rival trader, s 52 must be regarded as contemplating the effect of the impugned conduct on reasonable members of the class of prospective buyers or ordinary members of that class…[S]o far as the remarks relate to deception:
The usual manner in which ordinary people behave must be the test of what … deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded. The course of business and the way in which the particular class of goods are sold gives, it may be said, the setting, and the habits and observation of men [and women] considered in the mass affords the standard.
[emphasis added]
[204] In order to test whether a misconception has arisen or might arise among members of the relevant cohort by reason of the impugned conduct, the inquiry is to be made notionally of the hypothetical individual excluding "assumptions by persons whose reactions are extreme or fanciful"…The question is "whether the misconceptions, or deceptions, alleged to arise, or to be likely to arise, are properly to be attributable to the ordinary and reasonable members of the class of prospective purchasers"…The issue is not whether the impugned conduct simply causes confusion or wonderment but whether the conduct is or is likely to mislead or deceive.
[205 …In determining whether a contravention of s 52 has occurred, the focus of the inquiry is whether a not insignificant number within the class or cohort have been misled or deceived or are likely to be misled or deceived by the respondent's alleged conduct, whether in fact or by inference...
…
[210] In assessing the character of the conduct in question, against the background of all of the contextual circumstances, conduct which misleads a consumer such that he or she opens negotiations or invites approaches under some mistaken impression of a trader's connection or affiliation with another, may be engaging in misleading or deceptive conduct even if the true position emerges before the transaction is concluded.
(citations omitted and emphasis in original)
60 In SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1; (1999) 48 IPR 593 at [51], French, Heerey and Lindgren JJ reiterated that misleading or deceptive conduct in trade or commerce is not limited to conduct which induces or is likely to induce entry into a transaction but may include an inducement to open negotiations or invite approaches, even if the true position emerges before the transaction is concluded.
61 Further, in ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640, the High Court noted that:
[50] It has long been recognised that a contravention of s 52 of the TPA may occur, not only when a contract has been concluded under the influence of a misleading advertisement, but also at the point where members of the target audience have been enticed into "the marketing web" by an erroneous belief engendered by an advertiser, even if the consumer may come to appreciate the true position before a transaction is concluded.
(footnotes omitted)
62 In considering whether consumers are likely to be misled or deceived, it is necessary to consider what was said and done against the background of all surrounding circumstances. These include:
(a) the strength of the applicant's reputation, and the extent of distribution of its products;
(b) the strength of the respondent's reputation, and the extent to which the respondent has undertaken any advertising of its product;
(c) the nature and extent of the differences between the products, including whether the products are directly competing;
(d) the circumstances in which the products are offered to the public; and
(e) whether the respondent has copied the applicant's product or has intentionally adopted prominent features and characteristics of the applicant's product.
63 The present case involves the adoption of trade indicia, rather than a trading name. Australian courts have recognised that a trader may establish a reputation in trade indicia other than names and logos, which may be protected without registration as a trade mark: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 ('the Cadbury Appeal') at [97].
64 As I have said, colour schemes may play an important role in the marketing of a product or service.
65 In Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) 53 IPR 481 ('Red Bull') the respondents were found to have engaged in passing off and misleading or deceptive conduct by importing and selling a new energy drink which adopted the so-called "total imagery" of the applicants' Red Bull energy drink (apart from its name). In so finding, Conti J held (at [55]) that:
…Colour schemes also constitute brand elements, colour being one of the most significant components of the get-up that attracts consumer attention, and being a central method of communication which can become part of a corporate supplier's signature; instances cited by Dr Beaton include Kodak's use of gold, black and red, Cadbury's purple and Shell's yellow and red. Ms Strachan responded that such entities have been using those respective colours over decades, and have operated in markets involving few competitors, and in the case of Shell for instance, the connection is not just the yellow colour but a yellow shell graphic; Dr Beaton rejoined that once attention is attracted to a product, the colour with which it is associated continues to have an effect in enhancing the way consumers comprehend and elaborate brand meaning in their minds; he cited advertising research to the effect that colour is central to brand recognition, and posited that achievement of recognition correlates strongly with probability of purchase; while he would accept that advertisement or package recognition does not necessarily cause propensity to purchase, the published research he cites constitutes important empirical observation which sheds light on the value of maximising the communication power of printed material, such as advertising and packaging.
66 Justice Conti recognised that the reputation may be distinct from the trading name associated with it. In Red Bull his Honour held (at [61]) that "Colour and colour combinations, particularly of cans such as those of the 250 ml size here involved, tends to attract attention before brand names embossed thereon". Justice Conti determined (at [65]) that:
…Particularly in such product contexts, sufficient similarities of get-up may conceivably relate to elements of colour, shape and size, and thus to the existence of passing off, irrespective of the use by the competitor of a different brand name.
67 Further, there is no need to identify an exclusive reputation.
68 The Full Court in the Cadbury Appeal held that, for the purposes of the misleading or deceptive conduct provisions, there is no requirement that the applicant establish an exclusive reputation. The Full Court said at [97]-[99]:
[97] Both in the context of Part V of the Trade Practices Act and the common law tort of passing off, trade indicia other than names and logos can become associated with a particular trader, such that a use by another trader could give rise to misleading or deceptive conduct or passing off. If particular branding elements used by a trader have been identified in a special way with that trader in the minds of the members of the public, there may be misleading or deceptive conduct by reason of the appropriation of those particular branding elements by another trader.
[98] There is an overlap between causes of action arising under Part V of the Trade Practices Act and the common law tort of passing off. However, the causes of action have distinct origins and the purposes and interests that both bodies of law primarily protect are contrasting. Passing off protects a right of property in business or goodwill whereas Part V is concerned with consumer protection. Part V is not restricted by common law principles relating to passing off and provides wider protection than passing off.
[99] Whether or not there is a requirement for some exclusive reputation as an element in the common law tort of passing off, there is no such requirement in relation to Part V of the Trade Practices Act. The question is not whether an applicant has shown a sufficient reputation in a particular get-up or name. The question is whether the use of the particular get-up or name by an alleged wrongdoer in relation to his product is likely to mislead or deceive persons familiar with the claimant's product to believe that the two products are associated, having regard to the state of the knowledge of consumers in Australia of the claimant's product.
69 Once a trader has established that it has developed a secondary reputation in its trade indicia, the adoption of those indicia by another trader will be misleading or deceptive unless the rival trader can show that it has adequately distinguished its goods or services.
70 In Reckitt & Colman, Lord Oliver articulated the relevant test (at 15):
In the end, the question comes down not to whether the respondents are entitled to a monopoly in the sale of lemon juice in natural-size lemon-shaped containers but whether the appellants, in deliberately adopting, out of all the many possible shapes of container, a container having the most immediately striking feature of the respondents' get-up, have taken sufficient steps to distinguish their product from that of the respondents. As Romer LJ observed in Payton & Co v Snelling, Lampard & Co (1900) 17 RPC 48 at 56:
When one person has used certain leading features, though common to the trade, if another person is going to put goods on the market, having the same leading features, he should take extra care by the distinguishing features he is going to put on his goods, to see that the goods can be really distinguished...
71 A similar approach was adopted by Burchett J (Hill and Branson JJ agreeing) in Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 at [42], who held that "in view of the similarity" of the products in that case, "it was incumbent upon…[the respondent] to distinguish" its product from the extant rival product.
72 In Kettle Chip Co Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152, Burchett J at first instance held (at 164) that once a trader has adopted a get-up closely resembling that of another trader's product, even if it acted honestly in doing so, that trader "came under an obligation to take particular care to ensure that its product was adequately distinguished from that of the applicant". Justice Burchett made this assessment on the basis of an objective examination of the conduct: at 165.
73 In Bodum, the majority found (at [197]) that a secondary reputation existed in the shape and features of Bodum's coffee plunger, independently of the Bodum trade mark. Further, they found (at [196]) that as to the distinctiveness of those features, there was no evidence to suggest that the features of the Bodum coffee plunger were simply generic - there were many different styles of coffee makers. The majority concluded (at [189]) that consumers who retained a recognition of the trade mark and distinctive features of the Bodum coffee plunger were:
prima facie likely to think that a product exhibiting those features is a Bodum Chambord Coffee Plunger unless something about the rival product tells the consumer - "You are not looking at a Bodum Chambord Coffee Plunger here" - which goes to the question of labelling and the differentiation factors applicable to the rival product. The absence of the Bodum mark or name from the rival product, exhibiting the Bodum features of significant secondary distinction, does not diminish the attractive force of the secondary reputation in the features associated with the particular trader/manufacturer. The reputation for the shape and distinction of the Bodum Chambord Coffee Plunger does not dissolve in the absence of the trade mark.
74 The majority stated (at [198]) that the "real question to be determined" in that case was whether the respondent had "done enough having regard to all the relevant differentiation factors to distinguish its rival product from the Bodum product".
75 In Bodum, the majority considered that the use by the respondent, of the brand name "Euroline" was not adequate to dispel the error caused by the adoption of Bodum's other trade indicia (the shape of the coffee plunger). The majority held that:
(a) The name "Euroline" was "not distinctive and at …[the relevant date] was very likely to be regarded as an abbreviated description of a product having a provenance as a product within a line of European products": at [236].
(b) The adoption of a "non-distinctive and descriptive trade mark" was "not sufficient to distinguish the rival product from the distinctive product sought to be copied": at [244].
(c) It is an "error of principle to simply put cases such as Red Bull… to one side as purely 'impulse purchase' cases…": at [262].
76 In Red Bull, Conti J held that the respondents had engaged in passing off by importing and selling a new energy drink which adopted the get-up (the red and blue on silver colouring of the cans - a case, like here, involving a combination of colour features) of the applicants' Red Bull energy drink, even though the respondents' energy drink was clearly labelled "LiveWire". That decision was unanimously upheld on appeal in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, even though Weinberg and Dowsett JJ noted (at 107) that "the respective names of the products and the prominence with which they are displayed" created "significant differences in appearance". In concluding that the different brand names were insufficient to prevent passing off or misleading or deceptive conduct in Red Bull, Conti J noted (at [69]) that:
Even in the situation where both brand names were to be discernible at the point of sale to the potential customer, there would also be the "Ms Carswell" kind of customer, who might think that both products emanated from the same manufacturing stable, for all sorts of reasons, logical or otherwise.
77 It is important to appreciate that Red Bull was ultimately decided on the facts as found by the trial judge, and in particular the consistent application of a colour scheme and get-up. This is not the factual position in this proceeding.
78 It is not necessary for consumers to assume that the services are from the same source. It is sufficient if consumers believe that there is some connection or association between the services, or the persons who provide them: see H P Bulmer Ltd v J Bollinger SA [1978] RPC 79 (at 117 per Goff LJ) (approved by Beaumont J in Pacific Dunlop at 580).
79 Where the alleged misrepresentation is made to the public or a section of it (as opposed to identified individuals), the focus of the inquiry is whether a not insignificant number of persons within the relevant class of the public have been misled or deceived or are likely to be misled or deceived by the respondent's alleged conduct, whether in fact or by inference: see Hansen Beverage Co v Bickfords (Aust) Pty Ltd (2008) 171 FCR 579 at [46] per Tamberlin J and at [66] per Siopis J.
80 There has been debate as to whether the misleading or deceptive conduct provisions require a "not insignificant number" of the relevant class, or a "significant" or "substantial" number of persons within the relevant class, to be misled or deceived (or be likely to be misled or deceived). As Yates J observed in Optical 88, the prevailing line of authority expresses the test in terms of "significant" or "substantial", however his Honour shared my view that any perceived difference in approach is really a matter of expression and not of quantitative substance: at [341].
81 In circumstances such as in this proceeding, where a representation is made at large to a class (members of the public who are current or prospective purchasers of pharmacy products), the relevant assessment involves isolating a hypothetical ordinary or reasonable representative member of that class: see Campomar at [103]. In Campomar, the High Court stated (at [102]) that
[i]t is in these cases of representations to the public…that there enter the "ordinary" or "reasonable" members of the class of prospective purchasers. Although a class of consumers may be expected to include a wide range of persons, in isolating the "ordinary" or "reasonable" members of that class, there is an objective attribution of certain characteristics.
(footnotes omitted)
82 Likewise in Madden v Seafolly Pty Ltd (2014) 313 ALR 1, the Full Court stated at [77] that:
[o]n…occasions, such as here, there will be very many persons in the class of addressees with their own disparate, distinct characteristics so that it is not practicable or possible to analyse individual circumstances. In such cases, the court must identify the characteristics of the ordinary reasonable person in the class of addressees and assess the issue by reference to how that hypothetical person would have understood the publication, document or conduct…
83 I have already made some observations on the relevant date for assessing the alleged contraventions in this proceeding. However, I make the following further comments. The relevant date for assessing whether a respondent's conduct amounts to a passing off is the date that the respondent's conduct commenced in Australia. Although a court may consider evidence after that date for the purpose of determining what, if any, relief should be awarded, it may not do so in relation to liability.
84 Regarding the misleading or deceptive conduct provisions, the authority is to the same effect. The relevant date for assessing whether a respondent's conduct contravenes the provisions, and thus, the relevant date for assessing (to the extent necessary) the reputation of the applicant, is the date the impugned conduct commenced. There may well be an issue of determining on the facts when the "impugned conduct" commenced, particularly if the conduct involves a number of different elements that substantially change over time.
85 Justice Yates explained the relevant and correct principles in Optical 88. In that case (at [53]), the businesses of the applicant and the respondents were "broadly described as the retail sale and supply of optical goods and accessories, and of optometry services". The respondents used various iterations of the impugned name "Optical 88" in English and in Chinese characters on three stores, business cards and promotional materials starting on different dates from August 1993 to 2003. The respondents' first store opened at Campsie, a suburb south-west of Sydney's CBD, a second store opened in November 1993 at Chatswood on the North Shore of Sydney and a third store in July 1995 in Eastwood, a northern suburb of Sydney. Campsie is approximately a 20 km drive from each of Chatswood and Eastwood and the latter are about a 12 km drive from each other.
86 The applicant in Optical 88 referred to Gummow J's observation in Thai World Import & Export Co Ltd v Shuey Shing Pty Ltd (1989) 17 IPR 289 ('Thai World') that reputation might become relevant at a date later than when the respondent commenced its conduct where the applicant left the market and then sought to re-enter. The applicant contended that the converse was also true - if its reputation strengthened, the date should be assessed later than the commencement of the respondent's conduct.
87 Justice Yates held at [333]-[334]:
[333] In my view the applicant's proposition cannot be derived (or even discerned) from the proposition discussed by Gummow J in Thai World. If, in the present case, the applicant can establish that, as at the date of commencement of the impugned conduct (August 1993), it had a sufficient reputation to sustain its claim that the first respondent has contravened s 52 of the Trade Practices Act, it does not need to rely on any intervening strengthening of that reputation in the period before the commencement of proceedings, although any strengthening of its reputation may be a matter that is relevant to the question of relief. If, on the other hand, the applicant cannot establish that, as at the date of commencement of the impugned conduct, it had a sufficient reputation to sustain its claim, I cannot see how any after-acquired reputation can assist it in the face of what would otherwise have been the legitimate commencement and continued conduct of the first respondent's business.
[334] For the purposes of this aspect of the applicant's claims, I propose to consider the first respondent's impugned conduct at the time it commenced in August 1993. In my view this approach accords with both principle and established authority.
(citations omitted)
88 I now make some comments as to the principles of law relevant to where (as in this proceeding) there is evidence of copying.
89 A subjective intention to deceive or misrepresent is not a required element to establish passing off or contravention of the misleading or deceptive conduct provisions. Nevertheless, proof of deliberate borrowing of the features or get-up of a rival's product provides "evidential value" in the sense that, if trade indicia are adopted for the purpose of appropriating part of the trade or reputation of a rival, it should be presumed to be fitted for that purpose and therefore likely to deceive or confuse: see Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 ('Australian Woollen Mills') at 657 per Dixon and McTiernan JJ.
90 In Australian Woollen Mills at 657, Dixon and McTiernan JJ expressed this principle as follows:
…The rule that if a mark or get-up for goods is adopted for the purpose of appropriating part of the trade or reputation of a rival, it should be presumed to be fitted for the purpose and therefore likely to deceive or confuse, no doubt, is as just in principle as it is wholesome in tendency. In a question how possible or prospective buyers will be impressed by a given picture, word or appearance, the instinct and judgment of traders is not to be lightly rejected, and when a dishonest trader fashions an implement or weapon for the purpose of misleading potential customers he at least provides a reliable and expert opinion on the question whether what he has done is in fact likely to deceive….
91 More recently the High Court in Campomar at [33] held:
… it is well established by the authorities referred to by the Privy Council … that, where there is such a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective. Nevertheless, the actual decision in that case, favourable to the defendant, is a reminder that even an imitation of one product by another does not necessarily bespeak an intention to deceive purchasers. In particular, if Campomar were to retain its registrations and put them to use on a new range of products, the use thereon of NIKE would not necessarily indicate an intention to deceive purchasers.
92 In addition to the qualification set out above by the High Court, "even a deliberate copy of a rival's get-up in order to deceive is just one piece of evidence to be assessed with other relevant evidence": see Vendor Advocacy Australia Pty Ltd v Seitanidis (2013) 103 IPR 1 at [200], citing Windsor Smith Pty Ltd v Dr Martens Australia Pty Ltd (2000) 49 IPR 286 at [33] and REA Group Ltd v Real Estate 1 Ltd (2013) 102 IPR 1 at [212].
93 Then there is the issue of specific evidence of consumers or of those who have been misled. Even if evidence is given by a person that he or she was misled, this would not be conclusive and may be of limited utility.
94 As French J said in State Government Insurance Corporation v Government Insurance Office of New South Wales (1991) 28 FCR 511 at 529:
…Generally speaking in cases of alleged misleading or deceptive conduct which is analogous to passing-off, evidence from consumers that they have been misled by the impugned conduct is of limited utility. It has no statistical significance and the court cannot draw inferences from it that any section or fraction of the population will have similar reactions. But if the inference is open, independently of such testimonial evidence, that the conduct is misleading or deceptive or likely to mislead or deceive, then it may be that the evidence of consumers that they have been misled can strengthen that inference. …
95 As Franki J said in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ('Taco Bell') at 202:
…[E]vidence that some person has in fact formed an erroneous conclusion is admissible and may be persuasive but is not essential. Such evidence does not itself conclusively establish that conduct is misleading or deceptive or likely to mislead or deceive. The court must determine that question for itself. The test is objective.
(Citations omitted)
96 The relevant enquiry is by reference to a hypothetical ordinary or reasonable member of the class, and the test is objective.
97 Finally, in deciding whether a respondent's conduct breached the misleading or deceptive conduct provisions it is necessary to inquire why any proven misconception has arisen: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 ('Hornsby') at 228 per Stephen J with Jacobs J agreeing; Taco Bell at 203 per Deane and Fitzgerald JJ. In cases regarding the alleged taking of a competitor's trade indicia it is necessary to understand whether (or to what extent) any misconception suffered by consumers arises through the respondent's use of common or descriptive trade indicia.
98 As Lord Simonds said in Office Cleaning Services Ltd v Westminster Window and General Cleaners Ltd [1946] 63 RPC 39 at 43:
So long as descriptive words are used by two traders as part of their respective trade names, it is possible that some members of the public will be confused whatever the differentiating words may be.…[W]here a trader adopts words in common use for his trade name, some risk of confusion is inevitable. But that risk must be run unless the first user is allowed unfairly to monopolise the words. The Court will accept comparatively small differences as sufficient to avert confusion. A greater degree of discrimination may fairly be expected from the public where a trade name consists wholly or in part of words descriptive of the articles to be sold or the services to be rendered.
99 In Hornsby, Sydney Building Information Centre had been trading under that name for more than 20 years, and Stephen J accepted that there been some instances of confusion with the newly named Hornsby Building Information Centre. In an often quoted passage his Honour said at 229-230:
There is a price to be paid for the advantages flowing from the possession of an eloquently descriptive trade name. Because it is descriptive it is equally applicable to any business of a like kind, its very descriptiveness ensures that it is not distinctive of any particular business and hence its application to other like businesses will not ordinarily mislead the public. In cases of passing off, where it is the wrongful appropriation of the reputation of another or that of his goods that is in question, a plaintiff which uses descriptive words in its trade name will find that quite small differences in a competitor's trade name will render the latter immune from action. …The risk of confusion must be accepted, to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe.
If this be so in the case of passing off actions the case of s 52(1), concerned only with the interests of third parties, is a fortiori. To allow this section of the Trade Practices Act to be used as an instrument for the creation of any monopoly in descriptive names would be to mock the manifest intent of the legislation. Given that a name is no more than merely descriptive of a particular type of business, its use by others who carry on that same type of business does not deceive or mislead as to the nature of the business described….
(Citations omitted and emphasis added)
100 I observe that in this proceeding, as I have remarked earlier, the colours used by the Applicants had a practical and functional role. The colour yellow was accepted as being attention-grabbing. It has a general connotation of cheapness, good value or discount, and not just in the retail pharmacy industry. It is readily apparent that other traders would want to, and do, use this colour (and the other primary colours used by the parties in this proceeding) as part of their branding elements. There is nothing novel, unusual or unexpected in the way in which the Applicants used colour, nor in their advertising phrases and slogans. This is relevant to the consideration of whether the Respondents' conduct was misleading or deceptive, or likely to mislead or deceive.