Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 136
TRADE MARKS – proceeding for infringement with cross-claim for revocation – respondent/cross-claimant seeking registration of similar marks – whether applicant/cross-respondent able to pursue declaration of non-registrability in proceeding
Trade Marks Act 1995 (Cth), s 94 Federal Court of Australia Act 1976 (Cth), s 31A Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; (2006) 70 IPR 146 cited Kamha v Australian Prudential Regulation Authority (2007) 98 ALD 49; [2007] FCA 1422 cited Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (1999) 91 FCR 167 discussed Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 150 ALR 355; (1997) 39 IPR 303 discussed RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 followed White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 cited E. & J. GALLO WINERY v LION NATHAN AUSTRALIA PTY LIMITED (ACN 008 596 370)
NSD 1950 of 2007
GYLES J
14 FEBRUARY 2008
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1950 of 2007
BETWEEN: E. & J. GALLO WINERY
Applicant/Cross-Respondent
AND: LION NATHAN AUSTRALIA PTY LIMITED (ACN 008 596 370)
Respondent/Cross-Claimant
JUDGE: GYLES J
DATE OF ORDER: 14 FEBRUARY 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. Paragraph 4 of the Amended Application be dismissed. 2. Paragraph 20 of the Amended Statement of Claim be struck out. 3. The respondent/cross-claimant's notice of motion dated 21 December 2007 and the applicant/cross-respondent's notice of motion dated 31 January 2008 be otherwise dismissed and the costs thereof be costs in the cause. 4. The respondent/cross-claimant file and serve its evidence dealing with its adoption of the BAREFOOT RADLER mark and the use by it of the BAREFOOT RADLER mark, by 14 March 2008. 5. The respondent/cross-claimant file and serve its remaining evidence on all issues by 26 March 2008. 6. The applicant/cross-respondent file and serve: (a) any evidence in reply; and (b) any further evidence in answer to the cross-claim, by 7 April 2008. 7. The proceedings be set down for hearing commencing at 10.15 am on 14 April 2008, with an estimate of five days. 8. The parties have liberty to apply on 48 hours' written notice. 9. Confidential Exhibit SAB2 is to be kept confidential to the parties in the case to be utilised for the purposes of the case only. 10. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) the contents of Exhibit SAB2 not be published. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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