Facts: Campomar, a perfume and cosmetic manufacturer, started selling “NIKE Sport Fragrance” in pharmacies across Australia. It was displayed next to other sports fragrances from Nike’s competitors. Nike, a manufacturer and seller of sporting goods (but not perfumes) sued, alleging that Campomar’s conduct was likely to mislead members of the public into believing that its product was promoted or distributed by Nike International, or with its consent and approval.
Held: Nike was successful and an injunction was granted. The court found that in the circumstances, and given Nike’s established commercial reputation, the public were likely to be misled or deceived into believing that the sports fragrance was promoted or distributed by Nike. It held that, when looking at the “class” as a whole, the court must assess the likely impact on a “hypothetical individual who would have been a member of that ordinary or reasonable class”; the Court can ignore fanciful reactions.
Ratio: The test is by reference to a reasonable person. Ask whether a ‘reasonable’ hypothetical member of that class would be misled or deceived?