Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71

FEDERAL COURT OF AUSTRALIA

Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71 Appeal from: Bauer Consumer Media Limited v Evergreen Television Pty Ltd [2017] FCA 507

File number(s): NSD 808 of 2017 NSD 809 of 2017

Judge(s): GREENWOOD, RANGIAH AND BURLEY JJ

Date of judgment: 3 May 2019

Catchwords: TRADE MARKS – consideration of the nature of an appeal to the Federal Court of Australia under s 56 of the Trade Marks Act 1995 (Cth) (the "Act") from a decision of the delegate of the Registrar of Trade Marks – consideration of the essential statutory features of that which constitutes a trade mark for the purposes of the Act – consideration of the relationship between ss 17, 20, 27 and 120 of the Act – consideration of the elements of s 59 of the Act in the context of those provisions TRADE MARKS – consideration of whether the applicant for the trade mark in suit had an intention to use the trade mark, or authorise the use of the trade mark, in relation to the specified services, namely, the production of television programs – consideration of the relationship (if any) between the case made by the opponent to registration before the primary judge under s 59(a) of the Act and non-use proceedings under s 92(1) of the Act also heard before the primary judge at the same time as the hearing of the s 56 proceeding, relying upon grounds arising under s 92(4)(a) and s 92(4)(b) of the Act PRACTICE AND PROCEDURE – consideration of whether in the s 56 proceeding under the Act before the primary judge, the respondent (applicant for the trade mark "Evergreen") was fairly put on notice that the appellant (opponent to registration of the trade mark, "Bauer") was or would be contending for the proposition that Evergreen did not intend to use, or authorise the use of, the trade mark in relation to the production of television programs, that is, in relation to the specified services – consideration of whether Bauer's s 59(a) ground was confined to a question of an intention to use, or use at a relevant time, of the trade mark rather than a question of intention to use or use of the trade mark in relation to the specified services – consideration of Bauer's amended notice of appeal to this Court – consideration of Bauer's opening address, closing address and aspects of the evidence – consideration of Evergreen's contentions on the question of procedural fairness