Reasonable minds can differ: Has the Federal Court of Australia lowered the test for overturning judgments?


The slogan “like brands, only cheaper” is central to German supermarket giant Aldi’s business model.  Aldi’s house brands are developed on the back of successful “original” products but are provided at a lower price point to consumers.  In doing so, Aldi (and other businesses with a similar business models) tread a very fine line.

 On 22 June 2018, the Full Federal Court of Australia handed down its decision in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93.  The decision is important as the Full Court (including the Chief Justice) addressed the vexed question of the role of an appeal court in reviewing decisions on matters of impression: the cornerstone of cases involving trade mark infringement, misleading and deceptive conduct and passing off.

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