Trade mark infringement turns on broad essential features; deceptively similar biscuit wrappers were found infringing and injuncted.

For infringement of a registered trade mark, comparison must focus on the broad and essential features of the rival marks rather than a side-by-side search for differences. Where the essential features of the registered mark are adopted and the overall impression is likely to mislead an ordinary purchaser, infringement is made out. Applying that test, the Court found the biscuit wrapper deceptively similar because of shared size, colour scheme, pictorial elements and prominent word devices, and held that the matter was properly assessed as trade mark infringement rather than passing off. The Court further rejected the view that concurrent findings based on an erroneous legal approach were immune from interference, and granted injunction and costs.

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Issues: Whether the respondent's biscuit wrapper was deceptively similar to the appellant's registered trade mark so as to constitute infringement.

Analysis: For infringement of a registered trade mark, the comparison is to be made on the broad and essential features of the rival marks and not by placing them side by side to search for detailed differences. If the essential features of the registered mark are adopted and the overall impression is likely to mislead an ordinary purchaser, the use amounts to infringement. The Court applied that approach to the wrappers, noting similarity in size, colour scheme, pictorial features and prominent word devices, and rejected the view that the case should be tested as a passing off action or that concurrent findings based on an legal approach were immune from interference.

Conclusion: The respondent's wrapper was deceptively similar to the appellant's registered trade mark and amounted to infringement. The appellant was entitled to an injunction and costs.

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