Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Autumnpaper Ltd v Metropolitan Investment Group Pty Ltd [2017] FCA 1578 Appeal from: Metropolitan Investment Group Pty Ltd v Autumnpaper Ltd [2016] ATMO 115
File number: VID 48 of 2017
Judge: LEE J
Date of judgment: 8 December 2017
Catchwords: TRADE MARKS – consideration of an appeal under s 56 of the Trade Marks Act 1995 (Cth) from a decision of the Registrar's delegate in opposition proceedings – where respondent took no active part in the appeal proceedings – where no evidentiary basis for the Court to conclude that the trade mark sought to be registered is not capable of distinguishing the appellant's goods and services from those of other traders – appeal allowed and decision of the delegate set aside COSTS – where respondent served and advised of the appeal hearing date but did not take part in the proceedings – respondent's position never communicated – where matter called for the appeal and there was no appearance by the respondent but where the potential remained for the respondent to appear at the appeal – costs incurred by appellant because respondent's position never communicated – costs order made in absence of respondent but leave granted for respondent to apply to set aside the costs order
Legislation: Federal Court of Australia Act 1976 (Cth), Pt VB, s 43 Trade Marks Act 1995 (Cth), ss 56, 68, 68(1) Federal Court Rules 2011 (Cth), r 1.37
Cases cited: ACN 078 272 867 Pty Ltd (In liq) v Deputy Commissioner of Taxation [2011] HCA 46; (2011) 86 ALJR 4 Apple Inc v Macpro Computers (Aust) Pty Limited [2010] FCA 1505 Cadbury Schweppes Plc v Effem Foods Pty Ltd [2006] FCA 1267; (2006) 69 IPR 584 Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 4) [2017] FCA 436 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174 at [166] Raytheon Company v Lockheed Martin Corporation [2014] FCA 1063 Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020; (1999) 93 FCR 365 Societe Des Produits Nestle S.A. v Aldi Stores (A Limited Partnership) [2010] FCA 218 Suyen Corporation v Americana International Limited [2011] FCA 300
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