A need for Rescue of traders who borrow aspects of the get up of competitor products

• Published date: 19 August 2021
• Law Firm: Spruson & Ferguson
• Author: Ms Jacqueline Chelebian

Case note on Martin & Pleasance Pty Ltd v A Nelson & Co Ltd[2021] FCAFC 80

In the recent decision of Martin & Pleasance Pty Ltd v A Nelson & Co Ltd[2021] FCAFC 80, the Full Court of the Federal Court of Australia upheld the Federal Court's decision to grant an interlocutory injunction restraining Martin & Pleasance Pty Ltd (and related companies) (collectively, Martin) from marketing, promoting and/or supplying their 'RestQ' branded range of complementary medicines.

Background

The respondents are a group of UK based companies, being A Nelson & Co Ltd and related companies (collectively, Nelson), which manufacture a range of complementary medicines under the 'Rescue' brand (the Rescue Products), initially devised by Dr Edward Bach in the 1920s and 1930s. The range of Rescue Products included Rescue Remedy and Rescue Pastilles (for stress relief), Rescue Sleep and Rescue Sleep Spray (for sleeplessness) and Rescue Plus (for clarity and composure). Bach Flower Remedies Limited, the Second Respondent, is the owner of Australian registered trade marks for RESCUE and RESCUE SLEEP for goods including medicinal preparations and substances in Class 5.

Martin distributed Nelson's Rescue Products for over 30 years in the Australian retail market through various retail channels including pharmacies and supermarkets. In October 2020, Nelson sought to terminate the distribution agreement. In February 2021, Martin launched its own range of complementary medicine products for sleeplessness under the RestQ brand including RestQ Sleep Formula, RestQ Calm Formula and RestQ Focus Formula (collectively, RestQ Products). These products were made using...