Many parents around the world will be aware of the popular toy “Bashful Bunny” manufactured by UK company, Jellycat Limited. These plush toy bunnies are well known for their long ears and soft fabric. Given their popularity, it is no surprise that many replicas have appeared on the market.
However, in January 2022, Jellycat commenced proceedings in the Federal Court of Australia against Kmart, alleging that Kmart has misled consumers by selling a “bootleg” toy bunny in their stores.
The Proceedings
Kmart has its own line of plush toys that go by the name of “Resoftables”. Their line of Resoftables include a plush bunny which has very similar features to Jellycat’s Bashful Bunny, including the iconic long ears.
Jellycat alleges that by selling the Resoftables, Kmart has been misleading and deceiving its customers into believing that the Resoftables bunnies are genuine and reputable Jellycat toys, in breach of the Australian Consumer Law (ACL).
Jellycat sought an injunction to force Kmart to cease promoting and selling their Resoftables bunnies. Jellycat also sought damages from Kmart to compensate them for the loss and damage caused to their reputation and goodwill.
Jellycat has claimed that they have sustained loss and damage, and will continue to suffer loss and damage because of the significant price difference between the Bashful Bunny and the Resoftables. Large retailers, including David Jones, sell the Bashful Bunnies for anywhere between $30 - $50, whilst Kmart’s Resoftables retail for approximately $15.
However, in July 2022, the parties came to an agreement and have settled the matter outside of Court. The Proceedings have now been dismissed. Whilst the terms of settlement have remained confidential, Kmart have notably ceased the sale of their toy bunny in their Resoftables range.
Whilst it would have been difficult for Jellycat to prove Kmart intended to sell its Resoftables range as Jellycat products as it would have required Jellycat to show that the features of the Bashful Bunny were unique only to them, it does serve as a timely reminder to manufacturers and retailers to ensure that their products are not at risk of being considered a replica product.
How can Marsdens help you?
Understanding your obligations and responsibilities under the ACL can be a difficult and complicated task. However, it is important to ensure that your business is compliant with the ACL to minimise the risk of disputes.
If you are a manufacturer or retailer and have concerns relating to your obligations under the ACL, please contact Aaran Johnson or Bharath Balasubramanian (contact details below) to discuss how Marsdens can assist you.
The contents of this publication is for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
