Foster's Australia Limited v Cash's (Australia) Pty Ltd [2013] FCA 527

FEDERAL COURT OF AUSTRALIA

Foster's Australia Limited v Cash's (Australia) Pty Ltd [2013] FCA 527 Citation: Foster's Australia Limited v Cash's (Australia) Pty Ltd [2013] FCA 527

Parties: FOSTER'S AUSTRALIA LIMITED ACN 004 056 106, (NOW KNOWN AS CUB Pty Ltd) v CASH'S (AUSTRALIA) PTY LTD ACN 004 275 183

File number: VID 913 of 2011

Judge: KENNY J

Date of judgment: 29 May 2013

Catchwords: INTELLECTUAL PROPERTY – Application made for a patent pursuant to s 29(1) of the Patents Act 1990 (Cth) by a person not ultimately entitled to grant of patent within the terms of 15(1) of the Patents Act – Prior to grant of patent, rights to invention and application assigned to entitled person within the meaning of s 15(1) - Held that patent application validly made under s 29(1) and properly granted to entitled person within the meaning of 15(1) such that the patent should not be revoked pursuant to 138(3)(a) of the Patents Act - No false suggestion or misrepresentation to the Commissioner of Patents such that patents should be revoked in exercise of Court's discretion under s 138(3)(d) or (e) of the Patents Act. INTELLECTUAL PROPERTY – Application filed for design registration pursuant to s 21(1) of the Designs Act 2003 (Cth) by a person not entitled to be entered on the Register of Designs within the terms of s 13(1) of the Designs Act – Design registered in name of applicant – Held that application for design registration and registration of design were valid because in both events applicant was acting as constructive trustee for entitled person – Accordingly no revocation on the grounds of s 93(3)(b) warranted - No false suggestion or misrepresentation made to the Registrar of Designs such that registration of the design should be revoked in exercise of Court's discretion under s 93(3)(d) of the Designs Act 2003 (Cth).