Ricegrowers Ltd v Real Foods Pty Ltd [2008] FCA 639

Ricegrowers Limited manufactures and distributes a number of processed food products including rice cakes and corn cakes under the trading or brand name “SunRice”.  In August 2003 it began selling, under the SunRice brand, sour cream and chives flavoured rice cakes.  Those rice cakes were originally about 1.6cm thick, but by March 2004, SunRice was making thin ones about 0.8cm thick.  In May 2006 Ricegrowers introduced sea salt and balsamic vinegar flavoured thin rice cakes to its SunRice range.  Next, in August 2006 Ricegrowers began selling SunRice nacho cheese flavoured thin corn cakes.  All three products were sold in flow pack packaging.

Real Foods Pty Limited also manufactures and distributes a number of processed food products including rice cakes and corn cakes.  By mid 1996, Real Foods had produced and sold, under the trading name “Corn Thins”, corn cakes which were about 0.8cm thick.  These corn cakes were unflavoured.  Additionally, Real Foods produced a number of varieties of “Corn Thins”, such as soy and linseed, multigrain, wholegrain and organic with sesame.  In 1999 Real Foods began producing and selling, under the trading name “Rice Thins”, rice cakes which were about 0.8cm thick.

Ricegrowers has brought these proceedings because, in about April 2007, Real Foods commenced promoting and offering for sale a range of three flavoured thin corn cakes called “NEW CORN THINS”, also in flow pack packaging.  The three varieties of Real Foods corn cakes are:  CORN THINS - sour cream and chives flavour;  CORN THINS - sea salt and vinegar flavour;  and CORN THINS - tasty cheese flavour.  Ricegrowers claims that Real Foods is passing off its corn cakes as Ricegrowers’, or is engaging in misleading and deceptive conduct in its packaging and get-up for its flavoured “Corn Thins”...

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