adidas brought an application under section 120 of the Trade
Marks Act 1995 (Cth) seeking a declaration that Pacific Brands had
infringed its three-stripe trade mark by supplying certain footwear
which also displayed decorative stripes. It also sought an order to
restrain them permanently from doing so (adidas AG v Pacific Brands
Footwear Pty Limited [2011] FCA 1205).
In preparing its evidence, adidas filed a Notice of Proposed
Survey which went to the issue of whether the mark in question was
deceptively similar to its trade mark. Pacific Brands applied for
orders that adidas not be permitted to use or rely upon a survey,
or the proposed survey, as evidence.
It argued that there was no necessity for survey evidence, and
that it was a waste of resources, since both questions to be tried
in the proceedings were questions of law and therefore, to be
determined by the judge (assisted by qualified expert
evidence).
