High Court of Australia
HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HEYDON, CRENNAN AND BELL JJ
HEALTH WORLD LTD APPELLANT
AND
SHIN-SUN AUSTRALIA PTY LTD RESPONDENT
Health World Ltd v Shin-Sun Australia Pty Ltd [2010] HCA 13
21 April 2010
S199/2009 & S200/2009
ORDER
Matter No S199/2009
1. The appeal be allowed.
2. The orders made by the Full Court of the Federal Court of Australia on 17 February 2009 in Federal Court proceeding NSD 394 of 2008 be set aside.
3. The proceeding be remitted to the Full Court of the Federal Court of Australia for determination of the remaining issues.
4. The respondent to pay the appellant's costs of the appeal.
5. The respondent to pay the appellant's costs of the appeal in Federal Court proceeding NSD 394 of 2008.
Matter No S200/2009
1. The appeal be allowed.
2. The orders made by the Full Court of the Federal Court of Australia on 17 February 2009 in Federal Court proceeding NSD 395 of 2008 be set aside.
3. The proceeding be remitted to the Full Court of the Federal Court of Australia for determination of the remaining issues.
4. The respondent to pay the appellant's costs of the appeal.
5. The respondent to pay the appellant's costs of the appeal in Federal Court proceeding NSD 395 of 2008.
On appeal from the Federal Court of Australia
Representation
S C G Burley SC with J S Cooke for the appellant (instructed by Bennett & Philp)
J R Baird SC with P L Arcus for the respondent (instructed by Middletons Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Health World Ltd v Shin-Sun Australia Pty Ltd
Intellectual property – Trade marks – Standing – Trade Marks Act 1995 (Cth) ("the Act"), ss 88 and 92 – Appellant and respondent both registered trade marks in class 5 for pharmaceutical products – Appellant sought cancellation of registration of respondent's trade mark under s 88 and removal of trade mark from Register under s 92 of the Act – Respondent claimed appellant not impeded in ownership and use of own trade mark by registration of respondent's trade mark – Whether appellant "aggrieved" under s 88(1) or s 92(1) of the Act – Whether "aggrieved" to be construed liberally – Whether actual desire or intention to use trade mark required to be "aggrieved" – Whether proof of adverse impact required to be "aggrieved".
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