17.
Goodwill is derived from the use of the assets and other elements or attributes of a business. It may have different aspects or components corresponding to its sources. Goodwill derived from the use of a trade mark, registered or unregistered, or from a particular get-up, may be protected by an action for passing off. Lockhart J observed in Conagra Inc v McCain Foods (Aust) Pty Ltd[1]:
"It is now beyond argument that the plaintiff's right which the law of passing off protects is a proprietary right in the goodwill or reputation of his business likely to be injured by the defendant's conduct."
That cause of action serves the purpose, which is its "underlying rationale", of preventing commercial dishonesty [2].
It has rightly been said that "[t]here is no 'property' in the accepted sense of the word in a get-up"[3]. The rights associated with a particular get-up, which may also be viewed as a species of common law trade mark, are the rights to protect goodwill by passing off actions or the statutory cause of action for misleading or deceptive conduct where another has made unauthorised use of the get-up in a way which satisfies the relevant criteria for liability. The get-up rights asserted by JTI and BAT and the other non-statutory rights are, like their statutory equivalents, exclusive rights which are negative in character and support protective actions against the invasion of goodwill.
Whether there is an acquisition of property
Section 51(xxxi) embodies a constitutional guarantee of just terms "and is to be given the liberal construction appropriate to such a constitutional provision."[4] Broad constructions of "property" and "acquisition" were linked by
- ↑ (1992) 33 FCR 302 at 340.
- ↑ (1992) 33 FCR 302 at 308.
- ↑ Reckitt & Colman Products Ltd v Borden Inc (1990) 1 WLR 491 at 505 per Lord Oliver of Aylmerton; [1990] 1 All ER 873 at 885.
- ↑ Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201–202 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; [1984] HCA 65; see also Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 509 per Mason CJ, Brennan, Deane and Gaudron JJ; [1993] HCA 10; Minister for the Army v Dalziel (1944) 68 CLR 261 at 276 per Latham CJ; [1944] HCA 4; The Commonwealth v New South Wales (1923) 33 CLR 1 at 20–21 per Knox CJ and Starke J; [1923] HCA 34.
