Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174

FEDERAL COURT OF AUSTRALIA

Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174 Appeal from: Primary Health Care Limited v Commonwealth of Australia [2016] FCA 313

File numbers: NSD 542 of 2016

Judges: GREENWOOD, KATZMANN AND RANGIAH JJ

Date of judgment: 9 November 2017

Catchwords: TRADE MARKS – application for leave to appeal – Registrar of Trade Marks refused registration of trade marks – primary judge dismissed appeal – whether relevant services were indivisible or indistinguishable from the provision of clinical care to patients – whether trade mark inherently adapted to distinguish the services – ordinary signification of phrase 'primary health care' – identification of target audience for a trade mark – whether trade marks used to distinguish the relevant services – whether trade mark not capable of distinguishing appellant's goods or services – whether trade marks likely to deceive or cause confusion – whether trade marks contrary to law – appeal dismissed

Legislation: Competition and Consumer Act 2010 (Cth) Sch 2, s 18 of Australian Consumer Law Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) The Trade Marks Registration Act 1876 (Vic), s 8 Trade Marks Act 1905 (Cth), s 114 Trade Marks Act 1955 (Cth), s 28 Trade Marks Act 1994 (Cth), s 42 Trade Marks Act 1995 (Cth), ss 6, 12, 17, 20, 27, 28, 32, 33, 39-44, 51, 55, 56, 72, 74, 120, 195 Trade Marks Bill 1994 (Cth), cl 42 Trade Marks Bill 1995 (Cth), cl 43 Trade Marks Regulation 1995 (Cth), reg 3.1 and Sch 1 Explanatory Memorandum, Trade Marks Bill 1995 (Cth) Trade Practices Act 1974 (Cth), s 52 Medical Practice Regulation 2008 (NSW), regs 4, 6, 8 Registration of Trade Marks Act 1875 (UK), s 6 Trade Marks Act 1905 (UK), s 11