Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Trident Seafoods Corporation v Trident Foods Pty Ltd [2019] FCAFC 100 Appeal from: Trident Seafoods Corporation v Trident Foods Pty Limited [2018] FCA 1490
File numbers: NSD 1951 of 2018 NSD 2133 of 2018
Judges: REEVES, JAGOT AND RANGIAH JJ
Date of judgment: 20 June 2019
Catchwords: TRADE MARKS – application for leave to appeal – leave to appeal granted – exercise of discretion under s 101(3) – statutory purpose of Pt 9 of the Trade Marks Act 1955 (Cth) – evidentiary basis for there being relevant prospect of confusion in the minds of consumers – whether the use of the mark after the non-use period "did not lack good faith" and was not "colourable" – weight put to the use of the mark on products after the non-use application was made – categorisation of "fish" and "fish products" as including mussels and oysters (molluscs) – whether use of trade mark by parent company was also use by the subsidiary – appeal dismissed TRADE MARKS – application for extension of time – extension of time granted – application for leave to appeal – leave to appeal granted – exercise of discretion under s 44(3)(b) of the Trade Marks Act 1955 (Cth) – appeal allowed
Legislation: Trade Marks Act 1955 (Cth) ss 7(3), 8, 8(1), 27(1)(b), 44, 44(1), 44(1)(a)(ii), 44(3)(a), 44(3)(b), 44(4), 59, 92(4)(b), 101(3), 195(2)
Cases cited: Aston v Harlee Manufacturing Company (1960) 103 CLR 391 Austin Nichols & Company Inc v Lodestar Anstalt (No 1) [2012] FCAFC 8; (2012) 202 FCR 490 C A Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539; (2000) 52 IPR 42 E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934; (2008) 77 IPR 69 E & J Gallo Winery v Nathan Australia Pty Ltd [2010] HCA 15; (2010) 241 CLR 144 Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58; (2010) 185 FCR 9 Health World Ltd v Shin-Sun Australia Pty Ltd [2008] FCA 100; (2008) 75 IPR 478 Health World Ltd v Shin-Sun Australia Pty Ltd [2010] HCA 13; (2010) 240 CLR 590 Hills Industries Limited v Bitek Pty Ltd [2011] FCA 94; (2011) 214 FCR 396 House v The King (1936) 55 CLR 499 Lodestar Anstalt v Campari America LLC [2016] FCAFC 92; (2016) 244 FCR 557 Macquarie Dictionary Oxford English Dictionary Pioneer Kabushiki Kaisha v Registrar of Trade Marks [1977] HCA 56; (1977) 137 CLR 670 The Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158; (1988) 88 ALR 217 Trident Seafoods Corporation v Trident Foods Pty Limited [2018] FCA 1490 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447
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