Bauer Consumer Media Limited v Evergreen Television Pty Ltd [2017] FCA 507

FEDERAL COURT OF AUSTRALIA

Bauer Consumer Media Limited v Evergreen Television Pty Ltd [2017] FCA 507 Appeal from: Bauer Consumer Media Ltd and Bauer Media Pty Ltd v Evergreen Television Pty Ltd [2014] ATMO 78

File numbers: NSD 935 of 2014 NSD 682 of 2015

Judge: PERRY J

Date of judgment: 12 May 2017

Catchwords: TRADE MARKS – appeal under s 56, Trade Marks Act 1995 (Cth), from decision of delegate of the Registrar of Trademarks refusing opposition to registration of trade mark and allowing registration – registration opposed on ground that applicant for registration was not owner of the mark – failure by opponent to establish first use of the mark – first use by applicant for registration by entry into licencing agreement - whether intention to use the mark in good faith– whether registration application made in bad faith – whether use of mark likely to deceive or confuse – whether use of mark contrary to law – whether leave required to consider new ground raised in closing address on appeal – appeal dismissed TRADE MARKS – application under s 101(2) of Trade Marks Act for removal of trade mark – removal under s 92(4)(a) or (b) on grounds of alleged non-use – where conduct of applicant for removal presented insurmountable obstacle to use for the purposes of s 100(3)(c) – application dismissed EVIDENCE – impact of passage of time on quality of evidence – application of Jones v Dunkel where failure by a party to call potential witnesses – whether necessary for potential witness to be a person over whom the party had control – drawing of adverse inferences where no satisfactory explanation for failure to produce documents