Plunger wars: Latest decision bodes well for Bodum

Since the famous decision of the High Court of Australia in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 in 1982, it has been commonly accepted that a rival trader can copy someone else's product with impunity (unless the product is protected by statutory intellectual property rights, such as a registered design), provided that the look-alike product is marked with the rival trader's brand. The recent decision of the Full Federal Court in Peter Bodum A/S & Ors v DKSH Australia Pty Ltd [2011] FCAFC 98 casts some doubt on whether that is a correct reading of the High Court's decision.

What was the case about?

The well-known Bodum Chambord coffee plunger was first developed in 1958. Since 1986, the Bodum Chambord coffee plunger has been promoted and advertised widely in Australia and generated substantial sales.

In 2004, DKSH Australia Pty Ltd began distributing and selling a rival product, the Euroline coffee plunger, which closely resembled all of the design features of the Bodum Chambord coffee plunger.

Bodum contended that by advertising and selling the Euroline coffee plunger with the features of the Bodum Chambord coffee plunger, without labelling or distinguishing it adequately or at all, DKSH had falsely represented to consumers that the Euroline coffee plunger is the Bodum Chambord coffee plunger or is otherwise associated with Bodum. Bodum sued DKSH, alleging passing off and misleading or deceptive conduct and false or...