Dunlop Aircraft Tyres Limited v The Goodyear Tire & Rubber Company [2018] FCA 1014

FEDERAL COURT OF AUSTRALIA

Dunlop Aircraft Tyres Limited v The Goodyear Tire & Rubber Company [2018] FCA 1014 File numbers: NSD 159 of 2015 NSD 356 of 2015

Judge: NICHOLAS J

Date of judgment: 6 July 2018

Catchwords: TRADE MARKS – whether respondents infringed Dunlop word marks and/or the Flying D device marks ("Dunlop/Flying D marks") registered with respect to (inter alia) aircraft tyres and related parts and aircraft tyre re-treading services – whether defences available under s 120(2), s 122(1)(a), (b), (e) and (f) of the Trade Marks Act 1995 (Cth) ("the Act") TRADE MARKS – whether the Dunlop/Flying D marks should be removed from the Register for non-use pursuant to s 101(2) of the Act in so far as they extend to aircraft tyres and related parts and aircraft tyre re-treading services – whether registered owner used such marks in respect of aircraft tyres and related parts or aircraft tyre re-treading services – whether there was authorised use by wholly owned subsidiary of registered owner – significance of licence agreement between parent and wholly owned subsidiary – whether marks should be removed TRADE MARKS – whether trade mark registrations for Dunlop/Flying D marks should be rectified pursuant to s 88(1) of the Act on grounds specified in s 88(2)(a)(c) or (e) of the Act – whether an order may be made under s 88(1) of the Act that takes effect before such order is made – whether trade mark owner can obtain relief for infringement of a trade mark that is cancelled or rectified pursuant to s 88(1) of the Act