Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Ocean Spray Cranberries Inc v Registrar of Trade Marks
2000 [FCA] 177
TRADE MARKS – Appeal against refusal of registration – whether mark CRANBERRY CLASSIC is not capable of distinguishing applicant's goods – Whether mark has become distinctive of applicant's goods. Trade Marks Act 1995, SS 17, 33, 35 and 41 OCEAN SPRAY CRANBERRIES INC v REGISTRAR OF TRADE MARKS N996 of 1999 WILCOX J SYDNEY 25 FEBRUARY 2000
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N996 of 1999
BETWEEN: OCEAN SPRAY CRANBERRIES, INC
APPLICANT
AND: REGISTRAR OF TRADE MARKS
RESPONDENT
JUDGE: WILCOX J
DATE OF ORDER: 25 FEBRUARY 2000
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant, Ocean Spray Cranberries Inc, pay the costs of the respondent, Registrar of Trade Marks. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N996 of 1999
BETWEEN: OCEAN SPRAY CRANBERRIES, INC
APPLICANT
AND: REGISTRAR OF TRADE MARKS
RESPONDENT
JUDGE: WILCOX J
DATE: 25 FEBRUARY 2000
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 WILCOX J: This is an appeal against a decision of the Registrar of Trade Marks, by his delegate Ian Thompson, to "refuse to register" trade mark application 753694. The basis of Mr Thompson's decision was that the trade mark did not satisfy the requirements of s41 of the Trade Marks Act 1995. This conclusion was not reached in opposition proceedings under Part 5 of the Act but, rather, after a hearing at which Mr Thompson considered two grounds for rejection identified by the examiner who reported on the application. 2 Despite the words used by Mr Thompson in his reasons, it seems his decision was to reject the application pursuant to s33(3) of the Act; so the matter comes to this Court under s35(b) of the Act. 3 The applicant in this Court is the applicant for registration of the trade mark, Ocean Spray Cranberries Inc ("Ocean Spray"). The respondent is the Registrar of Trade Marks.
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