Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
E. & J. Gallo Winery v Lion Nathan Pty Limited (No 2) [2008] FCA 1005
TRADE MARKS – non-use for 3 years – order for removal of trade mark – removal sought as from end of non-use period – order made with effect from date of decision
Trade Marks Act 1995 (Cth), ss 79, 98, 101(2), 127 Trade Marks Act 1938 (UK), s 32(1)
E & J Gallo Winery v Lion Nathan [2008] FCA 934 cited Second Sight v Novell UK [1995] RPC 423 followed E. & J. GALLO WINERY v LION NATHAN AUSTRALIA PTY LIMITED
NSD 1950 of 2007
FLICK J
27 JUNE 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY NSD 1950 of 2007
BETWEEN: E. & J. GALLO WINERY
Applicant
AND: LION NATHAN AUSTRALIA PTY LIMITED
Respondent
JUDGE: FLICK J DATE OF ORDER: 27 JUNE 2008
WHERE MADE: SYDNEY
THE ORDERS OF THE COURT ARE:
1. The Amended Application be dismissed. 2. The Applicant to pay the Respondent's costs of the Amended Application. 3. The Registrar of Trade Marks remove the Australian Trade Mark No 787765 from the Register of Trade Marks. 4. The operation of Order 3 be stayed for: (a) 21 days from the date hereof; or (b) in the event that the Applicant/Cross-Respondent within that time files a Notice of Appeal, until determination of the appeal, on the Applicant/Cross-Respondent's undertaking to pursue any such appeal with all due expedition. 5. The Cross-Respondent pay the Cross-Claimant's costs of the Cross-Claim. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY NSD 1950 of 2007
BETWEEN: E. & J. GALLO WINERY
Applicant
AND: LION NATHAN AUSTRALIA PTY LIMITED
Respondent
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