This case involves parties selling similar “enhanced drinking water” products in Australia. Images are available in the judgement.
NutrientWater had not registered its Trade Dress as a trade mark. Thus, it was not able to take action under the Trade Marks Act.
In Nutrientwater Pty Ltd v Baco Pty Ltd  FCA 2, NutrientWater alleged that:
(a) Baco was infringing its common law rights by “passing off” its range of enhanced water as NutrientWater beverages and
(b) the actions of Baco were misleading and deceptive and thus infringed the provisions of the Trade Practices Act.
As part of its defense Baco alleged that NutrientWater could not claim any rights to its Trade Dress as it had deliberately changed its own Trade Dress to be similar to the VitaminWater Trade Dress. Baco also referred the Court to a range of other products that had similar Trade Dress.
NutrientWater ultimately lost the case because it was not able to establish that it had accrued a relevant reputation in the Trade Dress features allegedly appropriated by Baco.
This case illustrates how difficult it can be to stop others from copying elements of Trade Dress when only relying on common law trade mark rights.