Re Registered Trade Mark Yanx; Ex parte Amalgamated Tobacco Corporation Ltd [1951] HCA 28

High Court of Australia Williams J. Re Registered Trade Mark Yanx; Ex parte Amalgamated Tobacco Corporation Ltd [1951] HCA 28

ORDER Order accordingly.

Cur. adv. vult.

J Williams delivered the following written judgment:—

June 4 Williams J

This is an application under s. 71 of the Trade Marks Act 1905-1936 to rectify the register of trade marks by expunging therefrom registered trade mark 88717 on the ground that the entry of this trade mark was wrongly made on the register. The date of registration is 30th September 1946. The registration is in class 45 in respect of cigarettes. The trade mark consists of a label suitable for printing on packets or other containers of cigarettes comprising the word "Yanx" in very prominent letters in combination with stars and stripes, the same word in less prominent letters, and also the words "Yanx Cigarettes" followed by a statement that the cigarettes are manufactured from the finest Macedonian and choicest American tobaccos blended proportionately to bring out the flavour of each tobacco and ending with the words "Made in England," the letters of the words "Yanx Cigarettes" and "Made in England" being of about the same size as the letters of the word "Yanx" where it secondly appears. The words Menzala and Menzala Cigarette Co. Ltd., London, E.C., also appear on the label.

The applicant is a company incorporated in England which manufactures and exports cigarettes. The respondent is also a company incorporated in England which manufactures and exports cigarettes. Another company incorporated in England, Fifteens Tobacco Co. Ltd., was the predecessor in business of the applicant. By an agreement made on 31st July 1946 between these two companies the former company sold to the applicant the goodwill of its business including the right to represent itself as carrying on such business in continuation of the vendor and in succession thereto and to use any words indicating that the business was carried on in succession to the vendor and all trade marks, brands and trade names connected therewith.