Farbenfabriken Bayer Aktien gesellschaft v Bayer Pharma Pty Ltd; R v Ashton [1965] HCA 24

High Court of Australia Barwick C.J. Taylor, Menzies, Windeyer and Owen JJ. Farbenfabriken Bayer Aktien gesellschaft v Bayer Pharma Pty Ltd; R v Ashton [1965] HCA 24

ORDER Farbenfabriken Bayer Aktiengesellschaft v. Bayer Pharma Pty. Limited:— Question asked in stated case answered as follows:Question. Is the appeal competent?Answer. No. Appellant to pay the respondent's costs of the case stated. The Queen v. Ashton and Bayer Pharma Pty. Limited:— Order that Order nisi for prohibition be made absolute. Costs of the Prosecutor and of the Assistant Registrar of Trade Marks to be paid by the second named respondent.

Cur. adv. vult.

The Court delivered the following written judgments:—

1965, May 4 Barwick C.J., Taylor, Menzies, Windeyer and Owen JJ.

These two matters, the one a case stated by Kitto J., the other an application to make absolute an order nisi for prohibition, arise out of the same set of circumstances and were heard together.

It appears that until 1st August 1958 Bayer Pharma Pty. Limited (hereafter referred to as the Australian Company) was registered under the provisions of the Trade Marks Act 1905-1948 Cth as the proprietor of Trade Mark No. 37254. On 22nd November 1956 it lodged with the Registrar of Trade Marks an application under s. 70 of that Act for leave to alter the trade mark in certain particulars and, on 6th June 1957, the fact that the application had been made and the proposed alteration to the mark were advertised in the Official Journal of Trade Marks Patents and Designs. Section 70 empowered the Registrar to refuse or grant such an application on such terms as he thought fit and, from his decision, an appeal lay to the Law Officer but no right of appeal to the Court was given. The section did not require the advertisement of pending applications nor did it make provision for opposition to such applications or for a hearing of the interested parties by the Registrar although, as a matter of practice, these procedures were adopted.