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Campomar Sociedad Limitada v Nike International Ltd (2000) 2

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by

Irene Che

on 21 October 2014

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Transcript of Campomar Sociedad Limitada v Nike International Ltd (2000) 2

LEGAL ISSUES
KEY FACTS
Legal principles: Statute
Legal principles : Common Law
Appellant - Capomar
Respondent - Nike

Registered 'Trade Mark 1'
'perfume products of all kinds and essential oils' - class 3
1980
1986
Incorporated
1993
Registered 'Trade Mark 2'
'bleaching preparations ... soaps' - class 3
1994
Commenced proceedings against campomar

Started selling perfumes under the name 'NIKE SPORT FRAGRANCE'
1985
Proposed venture to
NIKE :
jointly enter the market
Rejected
Capomar
's proposal
Previous:
TRADE PRACTICES ACT
1974 (Cth) No. 51, 1974 - SECT 52

Misleading or deceptive conduct.
52. (1) A corporation shall not, in trade or commerce, engage in conduct that is
misleading or deceptive.

(2) Nothing in the succeeding provisions of this Division shall be taken as
limiting by implication the generality of sub-section (1).
Wenxin Che
SID: 430571172

Chaofan Wang
SID: 440360470

Identical trademark, distinct products

Campomar:
Trademarks under class 3
Perfume and toiletries


NIKE
No trademarks under class 3
Sporting goods/ atheletic footwear


Significant gap in company reputation
Current:
Australian Consumer Law


18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
1993 Australian market:
Campomar: no reputation NIKE International: worldwide reputation
Confusing logo design
NIKE SPORTS FRAGRANCE
'NIKE' significantly larger
Slight variation in font, style, colour, size
vs
Questionable product name
'NIKE SPORTS FRAGRANCE'
Controversial product placing
'NIKE SPORTS FRAGRANCE' placed in the vicinity of Adidas sports fragrance in pharmacies
Adidas: well-known key competitor of NIKE International

Campomar Sociedad Limitada v Nike International Ltd
(2000) 202 CLR 45; [2000] HCA 12

'erroneous assumption'
'misleading or deceptive
conduct'- s18, ACL

'public conduct'
Q & A
THANKS! :)
NOW:

ISSUE:

Whether there had been any contravention by Campomar of s52(1) of the
TP Act
(current version: s18(1) of
ACL
)?
HELD: YES

'Campomar market the ‘NIKE SPORT FRAGRANCE’ products in order to take advantage of the goodwill and reputation of NIKE international, intending customers to make an assumption that these products were marketed by either NIKE international itself or with its authority, and that this amounted to ‘blameworthy conduct’ on the part of Campomar.'
- Sheppard J
Causation - sufficient nexus:
significance of erroneous assumption
Relevant secions of the public:
prospective retail purchasers
'ordinary' or 'reasonable' representative:
hypothetical individual
'The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the class of prospective purchasers.'
Step #2
Examine likely effect on target audience
- could there be misconceptions ?
Conclusion
‘It would be enough if the ordinary person had entertained a reasonable doubt that perfumery product branded ‘NIKE’ would come from the same source as footwear and athletic clothing products;’
Conclusion:
Although there had been no product ‘extentions’ by NIKE group into sports fragrances, the marketing of ‘NIKE SPORTS FRAGRANCES’ was likely to mislead or deceive members of the public ‘into thinking that the NIKE sports fragrance was in some way promoted or distributed by NIKE international itself or with its consent and approval’
Step #3: ask :
why misconceptions have arisen?
‘[any] general proposition of law to the effect that intervention of an erroneous assumption between conduct and any misconception destroys a necessary chain of causation with the consequence that the conduct itself cannot properly be described as misleading or deceptive or as being likely to mislead or deceive.’: the assumption must not be extreme and fanciful
Ratio
' ... oral evidence of the witness shows that in the assumption they made as to the extension of ‘NIKE’ sportswear business into a sports fragrance, they were aware of and influenced by the activities of the Adidas company in introducing a range of Adidas fragrance products. In those circumstances, looking at the matter objectively, there was nothing capricious or unreasonable or unpredictable in Sheppard J’s conclusion that the placing of the ‘NIKE SPORT FRAGRANCE’ product in the same area of pharmacies with other sports fragrances was likely to mislead or deceive members of the public into thinking that the ‘NIKE SPORT FRAGRANCE’ product was in some way promoted or distributed by NIKE International itself or with its consent and approval.
Audience to whom the conduct was directed:
prospective retail purchasers
ISSUES TO CONSIDER:
'Ordinary' or 'reasonable' representative:
hypothetical individual
Causation - sufficient nexus:
significance of erroneous assumption
#1
#2
#3
Step #1
Identify relevant sections of the public
' ... those of actual or threatened conduct involving representations to the public at large or to a section thereof, such as prospective retail purchasers of a product the respondent markets or proposes to market'
'Hence, the issue with respect to the sufficiency of the nexus between the conduct or the apprehended conduct and the misleding or deceptioni or likely misleaing or deception of prospective purchasers is to be approached at a level of abstraction ... '
A COMPARISON
Taco Bell
McWilliams
Campomar
Similarities
repesentation made to public instead of individuals
erroneous assumption by the consumer

Distinctions
categories of product at dispute:

Similar in nature
Of disparate kinds
No overlap;
Might be related
(Relevant sections of the public)
(likely effect on target audience - could there be misconceptions)
(why misconceptions have arisen)
Cases
Full transcript