Food Channel Network Pty Ltd v Television Food Network, G.P [2009] FCA 1445

FEDERAL COURT OF AUSTRALIA

Food Channel Network Pty Ltd v Television Food Network, G.P [2009] FCA 1445

INTELLECTUAL PROPERTY – TRADE MARKS – Trade Marks Act 1995 (Cth) – test for leave to appeal under s 195(2) – whether there is sufficient doubt to warrant reconsideration of the matter and whether denial of an opportunity to appeal would involve a substantial injustice supposing the decision of the primary judge to have been wrong EVIDENCE – whether there is sufficient doubt that the refusal of primary judge to allow an affidavit resulted in the denial of a fair trial on the issues of ownership and intention to use – test to be applied – whether the affidavit contained material evidence and whether it was erroneously rejected thereby depriving the possibility of a successful outcome INTELLECTUAL PROPERTY – TRADE MARKS – s 44 – whether the primary judge made a proper assessment of deceptive similarity – test to be applied – two step process Trade Marks Act 1995 (Cth), ss 42, 43, 44, 44(1), 58, 59, 60, 195, 195(2) Federal Court of Australia Act 1976 (Cth), s 25(2)(a), 25(2) Evidence Act 1995 (Cth), s 135 Federal Court Rules, O 52 r 2AA Television Food Network, G.P. v Food Channel Network Pty Ltd (No 2) [2009] FCA 271 Woolworths Ltd v BP Plc (2006) 150 FCR 134; [2006] FCAFC 52 Kenman Kandy Australia Pty Ltd v Registrar of Trade Mark [2002] FCAFC 273 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Pfizer Corporation v Commissioner of Patents (2006) 155 FCR 578; [2006] FCAFC 190 The Scotch Whiskey Association v De Witt [2008] FCA 73 Jackamarra v Krakouer (1998) 195 CLR 516 Television Food Network, GP v Food Channel Network Pty Ltd [2008] FCA 378 Balenzuela v De Gail (1959) 101 CLR 226 Stead v State Government Insurance Commission (1986) 161 CLR 141 House v The King (1936) 55 CLR 499 Malibu Boats West, Inc v Catanese (2000) 180 ALR 119 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), unreported, 16 June 1986) Morton v Vouris (1996) 21 ACSR 497 Woodward v Loadman (No 1) (2007) 22 NTLR 1 Wills v Australian Broadcasting Commission [2009] FCAFC 6 Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365 In the Matter of An Application by the Pianotist Company Ltd for the Registration of a Trade Mark (1906) 23 RPC 774 Cooper Engineering Company Proprietary Limited v Sigmund Pumps Limited (1952) 86 CLR 536 Southern Cross Refrigerating Company v Toowoomba Foundry Proprietary Limited (1954) 91 CLR 592