Samuel Taylor Pty Ltd v Registrar of Trade Marks [1959] HCA 69

High Court of Australia McTiernan, Taylor and Windeyer JJ. Samuel Taylor Pty Ltd v Registrar of Trade Marks [1959] HCA 69

ORDER Affirm the refusal of the Deputy Registrar to accept Application No. 115,325, dated the 28th August 1953, unless the applicant Samuel Taylor Pty. Ltd. agrees to endorse thereon the following disclaimer Registration of this trade mark shall give the applicant no right to the exclusive use of the words Pressure Pak . Direct the Deputy Registrar to accept the application provided this condition is fulfilled. Appellant to pay the costs of the Registrar of this appeal.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 17 McTiernan, Taylor and Windeyer JJ.

This is an appeal from the refusal of the Deputy Registrar to accept an application by the appellant pursuant to the Trade Marks Act 1905-1948 for the registration of a trade mark in class 2 in respect of "insecticides". The mark in respect of which registration was sought consists of the word "Mortein" in bold lettering above the words, in smaller letters, "Pressure Pak" all of which are superimposed upon a series of lines and a geometrical figure of no particular significance. The application was lodged on or about 28th August 1953 and it was refused, ultimately, on 2nd September 1958. In the meantime, on 7th July 1955, it had been the subject of a report by an examiner who, inter alia, reported that "The applicant should disclaim any right to the exclusive use of the words "Pressure Pack" " (sic.). A number of extensions of time were granted in order to afford an opportunity to the appellant of dealing with this requisition but after further representations had been made the Deputy Registrar, on 31st July 1958, published an interim decision. In the course of his reasons he discussed the merits of the application and then announced that he would refuse the application unless the appellant should, within twenty-one days from the lastmentioned date, apply to endorse the application with a disclaimer reading "Registration of this trade mark shall give no right to the exclusive use of the words "Pressure Pak" ". Thereafter the appellant intimated that it was not prepared to have its application so endorsed and, as already appears, it was rejected on 2nd September 1958.