Heublein Inc v Continental Liqueurs Pty Ltd [1960] HCA 97

High Court of Australia Kitto J. McTiernan, Fullagar and Taylor JJ. Heublein Inc v Continental Liqueurs Pty Ltd [1960] HCA 97

ORDER Appeal dismissed with costs.

Cur. adv. vult.

1959, July 27 Kitto J . delivered the following written judgment:—

This proceeding comes before the Court as an appeal under s. 31A (13) of the Trade Marks Act 1905-1948 Cth against a decision of a Deputy Registrar of Trade Marks refusing an application for the registration of a company named Gilbeys Limited (formerly W. & A. Gilbey Limited) as registered user of a trade mark standing in the name of G. H. Heublein and Bro. Incorporated as proprietor.

The latter corporation is organized and exists under the laws of the State of Connecticut, U.S.A. It has changed its name to Heublein, Inc., and the change is in process of being recorded in the register of trade marks. This corporation became proprietor of the mark by transfer (apparently together with goodwill) from the original proprietor, a Connecticut corporation named Ste. Pierre Smirnoff Fls. Inc.

The Trade Marks Act 1905-1948 Cth has been repealed by the Trade Marks Act 1955 Cth which commenced on 1st August 1958; but by s. 5 (6) of the latter Act the repealed Act is made to apply, notwithstanding its repeal, to and in relation to applications for the registration of a person as the registered user of a trade mark made before the commencement of the repealing Act, and to and in relation to the registration of persons as registered users on those applications, although the new Act is to apply to and in relation to persons so registered.

The application which is the subject of this appeal was lodged with the Registrar on 16th July 1958, so that the appeal is to be dealt with under the former Act, assuming that s. 31A (13) of that Act, as continued in force by s. 5 (6) of the 1955 Act, is a valid law of the Commonwealth. The question has been raised whether the power which s. 31A (13) as so continued purports to confer on the Court is within the judicial power of the Commonwealth, but I need not consider that question as I have come to the conclusion that the appeal should fail on the merits.