Twentieth Century Fox Film Corp v The South Australian Brewing Co Ltd (1996) 66 FCR 451
Undesirable business practices; misleading conduct; relevance of intention of defendant.
Facts: The Twentieth Century Fox Film Corporation was the producer of 'The Simpsons', a well known and highly successful television series. The creator of this series, Matt Groening, had invented the name 'Duff Beer' for a fictional brand of beer often referred to in the series. In 1995 South Australian Brewing began producing and marketing beer under the name Duff Beer. Twentieth Century Fox brought an action against South Australian Brewing, to stop them from marketing their beer as 'Duff Beer', on the grounds that this constituted misleading conduct in breach of s 52 of the Trade Practices Act.
Issue: Was marketing beer as 'Duff Beer' without the permission of Twentieth Century Fox conduct likely to mislead members of the public?
Decision: Members of the public, many of whom were familiar with 'The Simpsons' television series, would likely be misled by South Australian Brewing using the name 'Duff Beer'.
Reasons: Before launching the beer, South Australian Brewing conducted market research into consumer reaction to the name 'Duff Beer'. They found the name to be widely recognised and strongly associated with the popular Simpsons program. It was on this basis that South Australian Brewing decided to launch their beer as 'Duff Beer'. In a deceptive conduct case, where conduct may cause wonder or confusion as to the true facts, a court will more readily conclude there has been a misrepresentation or deceptive conduct where the conduct is accompanied by an element of intention by the defendant. The evidence showed that the brewery had intended to persuade consumers that there was a strong association between their product and 'The Simpsons' and in this way obtain the full benefit of that association. As a result of this, members of the public would likely assume that Twentieth Century Fox had allowed the manufacture and marketing of the beer, which was untrue.
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.