Evidential Issues in Brand Appropriation Litigation

Brand appropriation litigation in Australia centres on one or more claims of trade mark infringement, breach of s18 of the Australian Consumer Law (formerly s52 of the Trade Practices Act), and commission of the tort of passing off. At the core of these actions is an allegation that the consumer was relevantly misled into buying the pirate brand rather than the legally protected one. Expert evidence, such as consumer survey evidence and that from marketing psychologists, is often but not universally tendered in cases of this type. The adducing of evidence in this category tends to prolong litigation and increase its cost. It is therefore appropriate to examine its utility. Cases to be commented upon include those centring upon the fictional Duff beer “brand”, the Cadbury brand (where Cadbury sought a monopoly on the shade of purple associated with its branding), and the Red Bull energy drink brand.