August 2013... In an earlier column I discussed the legal stoush between two operators in the Auckland drive through coffee business, Muzz Buzz (the plaintiff) and Jitta Buzz (the defendant). At that stage, Muzz Buzz had been unsuccessful in obtaining an interim injunction to prevent Jitta Buzz from marketing its business in such a way that Muzz Buzz claimed infringed its intellectual property while they waited for the full trial which was set down for March 2013.
Muzz Buzz is a drive through coffee brand which began in Western Australia before expanding to other parts of Australia and then Auckland in 2011. Since 2004 Muzz Buzz made considerable effort in developing recognition of its brand, including sponsoring the Perth Wildcats basketball team. Jitta Buzz is a New Zealand brand which opened its first drive through coffee outlet in Auckland in 2010 and a further outlet in 2012.
In the interim proceedings Muzz Buzz was unsuccessful, not because the Court considered there was not a serious question to be tried but because of the “balance of convenience test”. On one hand, if the injunction was granted, Jitta Buzz’s business would be substantially disrupted. On the other hand, if the injunction was refused and Muzz Buzz was ultimately successful at the full trial damages could be calculated and would be an adequate remedy for any loss that Muzz Buzz might suffer in the period between the interim proceedings and the full trial.
The full trial was heard in March this year and the High Court released its decision in late June. Muzz Buzz was successful on all four grounds pled, namely breach of copy right, breach of the its trade marks, passing off of Muzz Buzz’s intellectual property in the design features of the business as Jitta Buzz’s own and misleading and deceptive conduct in breach of the Fair Trading Act.
Muzz Buzz claimed that Jitta Buzz had copied its brand name, building shape, colours, design, website, uniforms, Facebook page and other brand identifiers. The Court examined the respective kiosks and websites belonging to Muzz Buzz and Jitta Buzz and found a number of similarities.
The Court rejected Jitta Buzz’s claim that they knew nothing about the style of Muzz Buzz’s kiosks given the extensive information about the Muzz Buzz brand which is available online for viewing by potential franchisees. The Court took the view that Jitta Buzz had identified that Muzz Buzz’s branding and marketing strategy would be successful if adopted in New Zealand and sought to capitalize on the success of Muzz Buzz’s brand in Western Australia.
Jitta Buzz denied that they had copied Muzz Buzz’s website, a stance which the Court rejected as offending common sense. Muzz Buzz’s website had been created some years before Jitta Buzz’s website, which repeated significant sections of text and themes.
The Court gave an order permanently restraining Jitta Buzz from using text or images which are similar in appearance to those texts or images used by Muzz Buzz.
The Court also agreed with Muzz Buzz’s claim that Jitta Buzz had infringed its registered trade marks and made an order restraining Jitta Buzz from using the words “Muzz Buzz”, “Jitta Buzz” or any similar words. In reaching this conclusion, the Court had to first consider whether Jitta Buzz’s signs were similar to Muzz Buzz’s registered trade marks, and secondly, whether Jitta Buzz’s use of those signs was likely to deceive or confuse. The Court was satisfied that the signs were similar when taken in context and the use of the words “Jitta Buzz” in relation to drive through coffee was likely to deceive or confuse potential customers. The Court referred to evidence given by two people, including the captain of the Perth Wildcats that they had mistakenly associated the appearance of a Jitta Buzz kiosk with the Australian Muzz Buzz brand that they were familiar with.
Despite the reasoning in the interim hearing that damages could be awarded at the full trial for any loss suffered by Muzz Buzz as a result of Jitta Buzz continuing to use its signs leading up to the full trial, Muzz Buzz offered no evidence that it had suffered financial loss and as a consequence the claim for damages was dismissed. It was apparent that Muzz Buzz’s principal objective was to obtain injunctive relief and they were successful in this regard. Muzz Buzz was entitled to claim reimbursement from Jitta Buzz for its legal costs.
Facebook
LinkedIn