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Benchmarking “Not Too Closely” – Is It Still Too Close?

In Aldi Foods Pty Limited v Hampden Holdings I.P. Pty Limited, the Full Federal Court clarified how to assess whether artistic works have been substantially reproduced where a competitor emulates a competitor’s packaging. Rejecting an approach built on abstracted “look and feel” elements, the Full Court required a side-by-side comparison of each pair of works informed by evidence of originality and found that five of Aldi’s eleven MAMIA packaging designs infringed.

Authors:

 

Tim O’Callaghan, Partner tocallaghan@piperalderman.com.au

Travis Shueard, Partner tshueard@piperalderman.com.au

Sahar Al-Dulaimi, Law Clerk saldulaimi@piperalderman.com.au