In Knight v Beyond Properties Pty Ltd [2007]
FCAFC 170 the Full Court of the Federal Court of Australia rejected an appeal by Mr Knight from the Court’s dismissal of his claim that Beyond Properties breached
the Trade Practices Act 1974 (Cth) and engaged in the tort of
passing off by publishing its Mythbusters television programs and spin-off books. Knight earlier wrote (using a nom de plume) 3 books about a group of persons who investigate
paranormal or
supernatural phenomena, using the name of ‘Mythbusters’.

The central issue for determination in thes appeal was whether the use of
the name ‘Mythbusters’ in the Mythbusters
TV Show was likely to
wrongly suggest to the mind of a reasonable television viewer that the show was
associated in some way with
Mr Knight’s Mythbusters Books (and other
associated activities, such as interviews and plans to develop a television show
of
his own) when in fact, as is acknowledged by both parties, there was never
any such association. Determination of this issue involved
a consideration
whether Mr Knight’s reputation in relation to the name was sufficient
to provide a reasonable basis for
such an assumption of association.

The trial judge concluded as a question of fact that the development
and adoption of the name had nothing to do with Mr Knight
or any of his ideas,
and that it was a belated choice because “it was a catchy term descriptive of
the activities portrayed by the Mythbusters TV show“.His Honour analysed
the material supplied by Mr Knight, including material which his Honour
held was not received by Beyond,
and found no similarity between the content of
Mr Knight’s Mythbusters Books and other materials and the content of the
Mythbusters
TV Show.

The Full Court agreed that Mr Knight failed to prove a sufficient connection
between the Mythbusters TV Show and his books: “any reputation vested in Mr Knight’s Mythbusters Books,
quite apart from being limited
to a narrow class of television broadcasters and
executives, was not sufficiently widespread to create an association in
the mind of the ordinary television viewing public with the Mythbusters TV Show
when that show entered the public arena in late
2004.”

we are of the view that the term
‘Mythbusters’ describes, in general terms, the breaking of beliefs
or understandings wrongly held in relation to a certain topic or proposition,
and is therefore in a broad sense descriptive.  It
is, however, also true that
when one looks at the Mythbusters TV Show, the type of myths it addresses, the
personalities of the presenters,
the format of the show, the script, and the
methods used are not described by the term ‘Mythbusters’, and
to this extent the term is not descriptive.  His Honour so concluded, and he
used the expression “to an extent at least” at… to indicate that the
name ‘Mythbusters’ was only broadly descriptive of the process of
“busting” myths, and
did not describe the detailed content of the program with
any specificity.