## Facts

- Pacific Dunlop Ltd. marketed Grosby “Leatherz” shoes and ran a television and poster campaign intentionally evoking a famous scene from the film *Crocodile Dundee* associated with Paul Hogan’s character “Mick Dundee.”
- The advertisements used an actor in closely similar costume and staging to recall the film scene; Hogan did not appear and was not named.
- The shoes were presented as the dramatic “weapon” replacing the knife in the well-known scene.
- Hogan, Rimfire Films Ltd. (the film’s producer with merchandising interests), and Burns Philp Trustee Co. Ltd. had not consented to the campaign and did not endorse the product.
- The respondents alleged the campaign falsely suggested a commercial association, sponsorship, or approval connecting them with the shoes.

## Issues

1. Whether the advertisements amounted to passing off by misrepresenting that Hogan and/or the film’s rights-holders were commercially associated with, or endorsed, Grosby “Leatherz” shoes.
2. Whether the advertisements were misleading or deceptive, or made false representations about sponsorship, approval, or affiliation under Trade Practices Act 1974 (Cth) ss 52 and 53(c), (d).
3. The extent to which an appellate court should defer to the trial judge’s “impression” findings about how the public would perceive the advertisements.

## Decision

- The Full Court (majority: Beaumont and Burchett JJ; Sheppard J dissenting) dismissed Pacific Dunlop’s appeal and affirmed judgment for the respondents.
- The majority upheld findings of passing off and contraventions of Trade Practices Act ss 52 and 53(c), (d) based on implied but false endorsement/association conveyed to a significant portion of consumers.
- The majority gave substantial weight to the trial judge’s evaluative findings about audience impression and found no appealable error.
- The trial relief (as affirmed) included restraint on further broadcast/display unless accompanied by a clear, prominent disclaimer that Hogan and the film’s makers had not agreed to, and did not endorse, the advertisements, plus entitlement to damages or an account of profits (at the respondents’ option).
- In dissent, Sheppard J would have allowed the appeal, viewing the campaign as a humorous take-off insufficient to mislead a significant section of the public into believing an actual commercial arrangement existed.

## Legal Principles

- Passing off may be established where advertising appropriates indicia strongly associated with a well-known character/celebrity in a manner that misrepresents a commercial association or endorsement.
- Under consumer protection provisions prohibiting misleading or deceptive conduct, liability can arise from implied representations of sponsorship, approval, or affiliation, even without explicit statements and even where the advertising uses humor or parody.
- The relevant question is whether the conduct would lead a significant portion of the target audience to form a mistaken belief of endorsement/association; the overall impression of the advertisement is central.
- Appellate courts should be slow to overturn trial findings that rest on impressionistic evaluation of how advertisements would be understood, absent demonstrated error.
- Although intention is not a necessary element for misleading conduct, deliberately taking advantage of consumer misconception can support a conclusion that the advertiser’s conduct is misleading.

## Conclusion

The Full Court held that evoking the distinctive imagery and character association of *Crocodile Dundee* in shoe advertising conveyed a misleading impression of endorsement or commercial connection, supporting liability in passing off and under statutory prohibitions on misleading conduct and false sponsorship/approval representations, with injunctive relief (including disclaimer conditions) and monetary remedies available.


Pac. Dunlop Ltd. v. Hogan, 87 A.L.R. 14 (F.C.A. 1989)