Campomar Sociedad Ltd v Nike International Ltd (2000) 202 CLR 45
Misleading conduct; likelihood of conduct causing error.
Facts: The word 'Nike' was registered as a trademark in different parts of the world by two different corporations, one based in Spain, the other in the USA. The Spanish company (Campomar) manufactured perfumes and related products. The American company (Nike International) manufactured sportswear and related products. Both companies marketed their goods in Australia. The Spanish company launched a new perfume called 'Nike Sport Fragrance'. This perfume was sold in pharmacies and displayed next to other perfumes on shelves. One of the other perfumes commonly sold in pharmacies was 'Adidas' which was manufactured and marketed by the well-known Adidas sportswear company. Nike International did not itself manufacture or market perfume products. Nevertheless, they argued that Campomar was marketing 'Nike Sport Fragrance' in a way that was likely to mislead or deceive prospective purchasers.
Issue: Was Campomar's conduct likely to mislead or deceive members of the public into thinking that their perfume was promoted or distributed by Nike International?
Decision: In the circumstances, Campomar's conduct was likely to mislead members of the public in this way.
Reason: Nike International itself did not produce and market perfumes, but other sportswear manufacturers such as Adidas did so, a fact which was widely known by members of the public. In these circumstances, placing the 'Nike Sport Fragrance' in the same area of pharmacies with other sports fragrances was likely to mislead or deceive the ordinary or reasonable members in the classes of prospective purchasers into thinking that the 'Nike Sport Fragrance' was in some way promoted or distributed by Nike International, either itself, or with its consent and approval.
Note: Although this case concerns s 52 of the Trade Practices Act 1974 (Cth), it continues to be relevant with regard to the interpretation and application of s 18 of the Australian Consumer Law.