Renaud Cointreau v Cordon Bleu International Ltee [2001] FCA 1170

FEDERAL COURT OF AUSTRALIA

Renaud Cointreau v Cordon Bleu International Ltee [2001] FCA 1170

INTELLECTUAL PROPERTY – trade marks – appeals from decision of single Judge dismissing appeal from decisions of delegates of the Registrar of Trade Marks – where delegates of Registrar allowed application for registration of mark "Cordon Bleu" by Canadian company in respect of pÂtÉ and meat spreads – opposition by French company proprietor of Le Cordon Bleu Cooking School in Paris and Au Petit Cordon Bleu Cooking School in London – application by French company for registration of device mark including words "CORDON BLEU" – relevant test for determining whether leave to appeal should be granted – whether a clear prima facie case of error has been shown – procedure the Court should adopt in considering leave application – leave application must be considered before substantive hearing of appeal – extent of reputation necessary to establish "proprietorship" for the purposes of s 40 – extent of reputation necessary to ground a claim, under s 28(a), of deception and confusion – application of test for determining the question of deception or confusion

WORDS AND PHRASES "cordon bleu"

Trade Marks Act 1955 (Cth)s 6(1)(a) and (3), s 28, s 33(1), s 40(1), s 114 Patents Act 1990 (Cth)

Campomar Sociedad, Limitada v Nike International Ltd (2000) 169 ALR 677 considered Australian Woollen Mills Limited v F S Walton & Co Limited (1937) 58 CLR 641 applied Genetics Institute Inc v Kirin-Amgen Inc (1999) 92 FCR 106 followed Genetics Institute Inc v Kirin-Amgen Inc (1999) 43 IPR 189 applied Sports CafÉ v The Registrar of Trade Marks [1998] AIPC 91-409 not followed Thunderbird Products Corporation v Thunderbird Marine Products Pty Ltd (1974) 131 CLR 592 considered McCormick & Company Inc v McCormick [2000] FCA 1335 distinguished Southern Cross Refrigerating Co v The Toowoomba Company Foundry Pty Ltd (1954) 91 CLR 592 considered