In one of the first judgments to interpret the High Court of Australia’s recent decision in Self Care, Hungry Jack’s BIG JACK was found not to infringe McDonald’s BIG MAC trade mark. However, the claim that the Big Jack had “25% more Aussie beef” than the Big Mac was found to be misleading or deceptive, emphasising the caution required with comparative advertising claims.
Key takeaways
- This is one of the first judgments to apply and interpret the High Court’s recent decision in Self Care IP Holdings v Allergan Australia Pty Ltd [2023] HCA 8 (Self Care), which we reported on earlier this year.
- While admittedly artificial, following the decision in Self Care, whether trade marks are deceptively similar must be assessed without considering any reputation in either mark, or any other branding or surrounding livery that is used on or in relation to the products along with the allegedly infringing trade mark.
- In assessing whether a representation is misleading or deceptive, it is the impression given to customers by the representation itself that is relevant, even if the same statement, in relation to the same or similar products, would be interpreted differently in other purchasing circumstances.
For further information, please contact:
Rebekah Gay, Partner, Herbert Smith Freehills
rebekah.gay@hsf.com
