Dr August Wolff GmbH & Co. KG Arzneimittel v Combe International Ltd [2020] FCA 39

FEDERAL COURT OF AUSTRALIA

Dr August Wolff GmbH & Co. KG Arzneimittel v Combe International Ltd [2020] FCA 39 File number: NSD 1840 of 2017

Judge: STEWART J

Date of judgment: 3 February 2020

Catchwords: TRADE MARKS – registration – opposition – appeal under s 56 of the Trade Marks Act 1995 (Cth) against decision of the Registrar of Trade Marks refusing registration of the mark VAGISAN – whether a ground of opposition to registration of the marks is established pursuant to ss 44, 59 and 60 of the Trade Marks Act 1995 (Cth) – whether applicant's mark is deceptively similar to the respondent's marks in respect of similar goods – whether applicant's mark likely to deceive or cause confusion because of reputation of respondent's marks – whether applicant intended to use or authorise use of mark at priority date – appeal allowed EVIDENCE – admissibility of schedules of data extracted from database – evidence objected to on the basis of inadmissible hearsay under s 59 of the Evidence Act 1995 (Cth) – whether schedules constitute business records under s 69 of the Evidence Act – whether Court should exercise its discretion under s 135 of the Evidence Act to exclude the evidence EVIDENCE – admissibility of survey evidence – where evidence constitutes hearsay under s 59 of the Evidence Act – whether survey evidence constitutes business records under s 69 of the Evidence Act

Legislation: Evidence Act 1995 (Cth) ss 50, 59, 69, 135, 190 Federal Court of Australia Act 1976 (Cth) ss 37AG, 37N Trade Marks Act 1995 (Cth) ss 10, 14, 44, 55, 56, 60 ,197 Trade Mark Regulations 1995 (Cth) r 17A.34