GF Heublein & Bro Inc v Continental Liqueurs Pty Ltd [1962] HCA 66

High Court of Australia Dixon C.J. Taylor and Windeyer JJ. GF Heublein & Bro Inc v Continental Liqueurs Pty Ltd

ORDER Appeal allowed with costs. Order appealed from set aside except as to costs of the Registrar of Trade Marks. In lieu of that portion of the order which is set aside order that the application be dismissed.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 19 Dixon C.J., Taylor and Windeyer JJ.

This is an appeal from an order made in the exercise of the original jurisdiction of this Court whereby, upon the application of the present respondent pursuant to s. 72 of the Trade Marks Act 1905-1948 Cth, it was directed that the appellant's trade mark—No. 82843—should be removed from the register of trade marks: Continental Liqueurs Pty. Ltd. v. G. F. Heublein and Bro. Inc. [8] . The ground upon which the order was made was that it had been shown that there had been no bona fide user thereof for a consecutive period of three years since the date of the last registration thereof. The application was instituted by the filing of a notice of motion on 15th March 1957 but no affidavits were filed in support of the motion before August 1958, the affidavit evidence was not completed until some time in May of the following year and the hearing of the application took place in November 1959. However, more than twelve months before the last mentioned month the Trade Marks Act 1955 Cth had come into operation (on 1st August 1958) and this Act wholly repealed the former Act. In these circumstances a question arose concerning the right of the respondent to pursue its application. This question, which was resolved by Kitto J. in favour of the present respondent, is the question which has occasioned us most concern on this appeal.

1. (1960) 103 C.L.R. 422.