Continental Liqueurs Pty Ltd v GF Heublein & Bro Inc [1960] HCA 37

High Court of Australia Kitto J. Continental Liqueurs Pty Ltd v GF Heublein & Bro Inc [1960] HCA 37

ORDER Order that the trade mark registered No. 82843 the subject of these proceedings be removed from the register of trade marks on the ground that it is shown that there has been no bona fide user thereof for a consecutive period of three years since the date of the last registration thereof. Order that the respondent Heublein Incorporated pay the costs of the applicant and the costs, if any, of the Registrar of Trade Marks, including in each case any reserved costs.

Cur. adv. vult.

Kitto J delivered the following written judgment:—

1960, June 28 Kitto J

I have been inclined to await the result of the pending appeal from my decision on the registered user application [1] ; but I understand that other litigation between the parties is being proceeded with, and in all the circumstances I have come to the conclusion that it is probably the better course to deliver my judgment now.

1. (1959) 103 C.L.R. 435.

By a notice of motion filed on 15th March 1957, Continental Liqueurs Pty. Limited, claiming to be a person aggrieved within the meaning of s. 72 of the Trade Marks Act 1905-1948 Cth, applied to this Court for an order that trade mark No. 82843 be removed from the register of trade marks on the ground that there had been no bona fide user of the mark for a consecutive period of three years since the date of the last registration thereof. "The date of the last registration" is an expression defined by s. 54, and, as applied to the present case as at the institution of the application it means the date of the original registration, namely 27th November 1944. I say "as at the institution of the application" because it is common ground that, although the registration has since been renewed the section is to be applied, if it is to be applied at all, as at that date.