Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Neumann v Sons of the Desert SL [2008] FCA 1183
HERBERT NEUMANN v SONS OF THE DESERT SL VID 333 of 2007
RYAN J
11 August 2008
MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 333of 2007
BETWEEN: HERBERT NEUMANN
Applicant
AND: SONS OF THE DESERT SL
Respondent
JUDGE: RYAN J
DATE OF ORDER: 11 august 2008
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be allowed. 2. The decision of the Registrar of Trade Marks by his delegate of 2 April 2007 be set aside. 3. The opposition to registration of trade mark application No 977941 ("the Application") be allowed. 4. The registration of the Application be refused. 5. The respondent pay the applicant's costs of the appeal and of the proceedings before the Registrar of Trade Marks, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 333 OF 2007
BETWEEN: HERBERT NEUMANN
Applicant
AND: SONS OF THE DESERT SL
Respondent
JUDGE: RYAN J
DATE: 11 august 2008
PLACE: MELBOURNE
REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Registrar of Trade Marks by his delegate, Mr Iain Thomson ("the Delegate"), given on 2 April 2007, whereby the applicant's opposition to registration of trade mark application No. 977941 ("the Application") by the respondent was dismissed. 2 The Court's jurisdiction to hear this appeal arises under s 191 of the Trade Marks Act 1995 (Cth) ("the Act"). Although referred to as an "appeal", this proceeding is by way of an application for the exercise of the Court's original jurisdiction and is conducted as a rehearing. There is no presumption of the correctness of the Registrar's decision but due weight is to be given to his opinion as that of a person expert in the evaluation of the relevant facts and the application to those facts of the principles which can be derived from the Act.
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