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Marketing Law Case: French Perfume Manufacturer V Green Valley Cosmetics With Regards To Breach Of Trade Marks Act, Passing Off And Business Secret

1468 words - 6 pages

PART BFrench Perfume Manufacturer v Green Valley CosmeticsFrench perfume manufacturer company might have claims against Green Valley Cosmetics in this matter under these possible actions.1. Trade Marks Act 1995The French company has registered its name "Fleur de Soleil" under the Trade Marks Act 1995 (Cth). The English translation of the name is "Sunflower." This registration of perfumery will be under the TM classification of goods and services CLASS 3, which include other leaching and abrasive preparations. According to Trade Marks Act, the French company will obtains the exclusive rights to use the trade mark, authorize others use the trade mark in Australia under section 20(1). The French company also has the right to obtain relief if the trade mark has been infringed under section 20(2).a. Breach of Trade Marks Act 1995To claim against Green Valley Cosmetics, the French company must establish that there is an infringement action against them where Green Valley Cosmetics has used a trade mark that is substantially similar or deceptively identical towards the French company's registered trade mark (s120(1)). It is justified that both goods were of the same description (perfumes) where the purpose of the goods is the same and the trade channel and customers for the goods are the same.Assuming that French company registered the trade mark consisting of a word (Fleur de Soleil) and when graphically represented it has a picture of a sunflower, the trade mark is to be labeled on all bottle of perfumes while Green Valley has not register its brand name:It is clear that Green Valley Cosmetics uses the brand name Sunflower while the registered brand name of French company is also Sunflower if it is translated into English.b. Substantially identical or deceptively similar testTherefore, to prove an infringement of Trade Marks Act by Green Valley must be established through substantially identical test. Under the rule of Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901, the judge looked at the ideas behind the marks that are used. If the same principle applies to French Perfume Manufacturer v Green Valley Cosmetics, it is clearly arguable that Green valley has infringed the Trade Marks Act by copying the exact same idea behind the brand name that both were under the same description of class and same branding ideas.c. EvidenceThere are evidences to prove that Green Valley has infringed Trade Marks Act. First of all, Green Valley has recognized the successful launch of "Sunflower" fragrance product in the European market and held confidential information that French Company will soon launch the same product in Australia. Further, the altering of its original product from "Tomboy" to "Sunflower" indicates some degree of intention to use the French Company's branding idea and mark. Under the rule of Frito-Lay Trading Co GmbH v Aldi Stores Limited Partnership [2001] FCA 969, the judge looked...

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