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Levi Strauss & Co v Kimbyr Investments Ltd - [1994] 1 NZLR 332

$30.00

High Court Wellington
19, 20, 21, 22, 23, 27, 28, 29 October; 14, 15, 16 December 1992; 28 June 1993
Williams J
Trade marks and trade names — Registration — Pictorial representation — Written description — Both representation and description on register — Whether representation or description delineates scope of mark — Whether use of written description on register prohibited — Whether written description is a condition or limitation — Whether evidence of administrative practice of Patents Office relevant — Trade Marks Act 1953, ss 5, 8 and 28 - Trade Marks Regulations 1954, regs 32(1) and 48(2).
Trade marks and trade names — Infringement — Whether trade mark so nearly resembled registered trade mark "as to be likely to deceive or cause confusion" - Post-sale confusion — Whether deception or confusion arose "in the course of trade" - Whether relief should be denied because plaintiffs' conduct involving a statement on promotional material constituted an abuse of rights conferred by the mark and an absence of "clean hands" - Trade Marks Act 1953, ss 8(1A) and 71(1).
Trade marks and trade names — Infringement — Rectification — Whether register could be rectified by expunging or restrictively redefining trade mark — Whether actual "use" sufficient to amount to "use" in the general sense so as to render trade mark holder immune from having mark struck off for non-use or redefined to confine use — Discretionary considerations — Trade Marks Act 1953, ss 35 and 41.
Trade marks and trade names — Infringement — Whether at date of application for registration marks described in the register were both distinctive and capable of distinguishing plaintiffs' mark.
Evidence — Admissibility — Evidence of administrative practice — Relevance — Whether expert evidence of practice of Patents Office relevant to interpretation of Trade Marks Act 1953 - Trade Marks Regulations 1954, Reg 48(2).
Evidence — Admissibility — Survey evidence — Whether survey evidence admissible — Whether survey sufficiently comprehensive — Whether interviewees represented cross-section of relevant public — Whether precise instructions to interviewers as to how to carry out survey were disclosed.
Commercial law — Trade practices — Fair Trading Act - "Misleading and deceptive conduct" - Whether plaintiffs' statement on promotional material constituted "misleading and deceptive conduct" - Whether risk of confusion to actual or potential purchasers — Fair Trading Act 1986, s 9.
Commercial law — Trade practices — Passing off — Whether use of tabs on jeans pockets amounted to a misrepresentation likely to lead the public to believe that the defendant's products belonged to the plaintiffs.
Commercial law — Trade practices — Fair Trading Act - "misleading and deceptive conduct" - Whether sale of jeans with pocket tabs "misleading or deceptive" conduct or likely to mislead or deceive — Whether in the "course of trade" - Fair Trading Act 1986, s 9.
Statutes — Interpretation — Whether administrative practice an aid to statutory interpretation.

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