Hoser v Sportsbet Pty Ltd  FCA 1557 (16 October 2018)
Hoser failed to restrain Sportsbet from using the words ‘snakeman’ or ‘snake man’ in aural form in a television advertisement.
As a preliminary matter, the court was asked to decide the following three questions:
(1) Whether the television commercial is a use by Sportsbet of “snake man” as a trade mark?
(2) Whether the television commercial represents to adult consumers in Australia that the man depicted in the advertisement is “the snakeman”?
(3) Whether the television commercial represents to adult consumers in Australia that there is a connection or association between Hoser and Sportsbet?
Robertson J found in the negative for all three questions and, as a result, Hoser’s originating application for relief was dismissed.
The relevant advertisement (and variants of it) was broadcast from May 2018 on free-to-air television channels and subsequently during online streaming of sporting events. It depicted a man dressed and conducting himself as a shake charmer with a voice over stating “Oi, snakeman [or snake man]!”
This was part of an advertising campaign by Sportsbet involving various individuals being engaged in an activity and being interrupted and distracted by a male voice calling out, typically prefaced with “Oi” and a humorous or colloquial name based on the relevant activity. The campaign was directed to promoting various sports betting offers.
Hoser owns trademark registrations for ‘snakeman’ covering various class 41 services including production and distribution of television programs, and ‘Snake man’ covering various services in classes 41 and 44. He claims to have been known as the ‘snake man’ since the 1960s and carries on business as a reptile expert and licensed wildlife demonstrator.
The first question relates to trade mark infringement because, for infringement to arise, there needs to be use of the offending sign ‘as a trade mark’, namely as a badge of origin. His Honour considered, in the context in which it occurred, the use of the ordinary English words “Snakeman” or “snake man” in Sportsbet’s advertisement did not indicate a connection in the course of trade between the online betting services offered and Sportsbet and was not used to distinguish services dealt with in the course of trade by Sportsbet.
His Honour agreed with Sportsbet that the words were used as “an exclamatory tool to disrupt both the character and the viewing audience to get their attention for the announcement that follows” and in that sense are “merely introductory” and “used in the advertisement’s pithy narrative structure” and are “transitory”.
The second and third questions relate to whether there was any representation likely to mislead or deceive consumers under the Australian Consumer Law. His Honour considered that consumers would not think that the snake charmer depicted is Hoser or that there is a connection between Sportsbet and him. The advertisements utilise the words “snake man” combined with the visual image of a South Asian snake charmer as a preliminary narrative for humorous and narrative effect as a background for the subsequent commercial substance, namely the promotion of online sports betting services. The “dominant thrust” or message of the advertisement is the particular promotion by Sportsbet of its betting services. Conversely, Hoser’s business is in the nature of a leading Australian reptile expert and wildlife demonstrator.