Appeal Court largely upholds ruling on the use of 'batts' branding

Wednesday 16th December 2015

Rival building products makers Knauf and Fletcher Building didn't move the Court of Appeal in their tussle over the use of the term "batts" to describe insulation.

Justices Tony Randerson, Christine Anderson and Mark Cooper dismissed the firms' appeals and cross-appeals of a 2014 judgment, which refused a bid by Knauf to revoke Fletcher's "Batts" trademark. The 2014 judgment also limited Fletcher’s claim of infringement of the trademark to the use of “batt” in the HTML code on the www.earthwool.co.nz website, which sold Knauf insulation, and in installation instructions on packaging.

The appeal court judges went further in ruling there was no infringement at all in the HTML code, although they agreed with the earlier judgment that earthwool marketing breached the Fair Trading Act.

"It is evident that the impugned words appear in a single line of source code along with numerous other lines of code of a highly disjointed nature and are unlikely to have any meaning or significance to a prospective purchaser," the judgment said. "Even assuming the notional internet user might for some unexplained reason access the source code, the words would appear to be entirely random and essentially meaningless."

Because the judges left the High Court decision largely intact, they ordered costs to lie where they fall.

BusinessDesk.co.nz

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