OTR sues X Convenience, accusing it of mimicking brands, store designs
Two of the state’s largest fuel and convenience rivals are locked in a legal battle over similarities in their branding and store designs. You be the judge.
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Fuel and convenience giant OTR is suing competing operator X Convenience, claiming it adopted similar branding and store features to OTR in a bid to “exploit” its larger rival’s success.
OTR has commenced Federal Court proceedings against a group of Andrash companies behind the X Convenience fuel network, and director Steven Kosmidis, arguing the close resemblance in branding and store designs were likely to mislead consumers into thinking the two chains were “connected, associated or affiliated”.
In documents filed with the court, OTR says there are several similarities between the two chains, including the use of black walls with yellow trims, signage in yellow and white lettering with yellow used for the first letter, exposed brick exterior walls and yellow shade sails outside of car wash facilities.
It also draws comparisons between OTR’s C Coffee and X Convenience’s Coffee Station brands, pointing out that red, white and black, and an “enlarged first letter C”, feature in both logos.
“By reason of the respondents’ use of the respondents’ get up, the respondents are likely to mislead a number of ordinary and reasonable consumers in South Australia and other parts of Australia into the erroneous belief that the respondents’ stores are connected, associated or affiliated with the applicants stores,” OTR says in its statement of claim.
“The resemblance of the respondents’ get up to the applicants’ get up is likely to entice an ordinary and reasonable consumer into the respondent’s ‘marketing web’, even if the consumer may come to appreciate the true position before any transaction is concluded.
“As an established operator of petrol stations and convenience stores in South Australia and other parts of Australia, the respondents were well placed to determine how it could most favourably exploit the advantage of the substantial goodwill developed in relation to the applicants’ get up.
“The respondents deliberately chose to adopt get up ‘sailing close to the wind’ of the applicants’ get up.”
OTR is seeking damages, and is also calling for trademarks related to X Convenience’s Coffee Station brand to be cancelled given they’re “deceptively similar” to OTR’s own brands used to promote its C Coffee offering.
However in their defence, Andrash and Mr Kosmidis argue their coffee trademarks are “different visually, aurally and conceptually” to OTR’s, and are displayed on signs outside stores in a “significantly different way”.
They also reject OTR’s claims that X Convenience misled and deceived consumers by mimicking OTR’s store design features, describing them as “predominantly generic and/or non-distinctive design or building characteristics”.
“Consumers of the products provided by the applicants will choose the store based on identifiable trademarks used in connection with the services or products sold (such as the applicants’ brand name OTR, or Hungry Jacks, Krispy Kreme, or the particular fuel provider (which might offer some kind of associated rewards system or fuel card)) and not physical features of the stores,” they say in their defence filed with the court.
The Kosmidis family completed the sale of its X Convenience network of more than 50 stores to BP in February, a year after the Shahin family’s Peregrine Corporation sold its 200-plus store OTR network to Viva Energy for $1.2bn. Stores across both chains are being rebranded following their sale to new fuel suppliers.
A Viva Energy spokesman said: “OTR confirms that it has commenced proceedings in the Federal Court of Australia against Andrash Pty Ltd and related parties alleging infringement of OTR’s intellectual property rights by the Andrash parties in connection with their ‘X Convenience’ branded retail stores.
“OTR will otherwise not be making any further comment on the matter while it is before the court.”
BP and Mr Kosmidis declined to comment.
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