10th Cantanae Pty. Ltd. v. Shoshana Pty. Ltd.

79 A.L.R. 299 (1987)

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10th Cantanae Pty. Ltd. v. Shoshana Pty. Ltd.

Australia Federal Court
79 A.L.R. 299 (1987)

Facts

Sue Smith (plaintiff) was a television personality who was well-known in the New South Wales area and in other parts of Australia. Smith’s interests were represented by her company, Shoshana Pty. Ltd. (Shoshana) (plaintiff). 10th Cantanae Pty. Ltd. (advertiser) (defendant) created print advertisements for Blaupunkt video recorders. The advertisements depicted a young woman who was watching television. The text of the advertisements informed the viewer that the woman in the advertisements, “Sue Smith,” had taken control of her video recorder. Smith and the woman in the advertisements were both brunettes but did not otherwise resemble each other. Smith and Shoshana sued the advertiser for passing off. The trial court found that the advertiser was unfamiliar with Smith and that the advertiser’s use of the name Sue Smith was coincidental. The trial court broadened Australian passing-off law by holding that to prevail, a plaintiff needed only to show that there was any representation that the plaintiff endorsed the defendant’s product. The trial court found that viewers would associate Smith with the advertisements because the advertisements contained the same name. The trial held the advertiser liable for passing off, among other claims. The advertiser appealed.

Rule of Law

Issue

Holding and Reasoning (Wilcox, J.)

Concurrence (Pincus, J.)

Dissent (Gummow, J)

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