Kimberly-Clark Corporation v Vereinigte Papierwerke Schikedanz & Co [1967] HCA 45

High Court of Australia Windeyer J. Kimberly-Clark Corporation v Vereinigte Papierwerke Schikedanz & Co [1967] HCA 45

ORDER In case No. 7 of 1965 (being an appeal in respect of trade mark application No. 167606)—Appeal allowed. In case No. 8 of 1965 (being an appeal in respect of trade mark application No. 167607)—Decision of the Assistant Registrar set aside. In lieu thereof order that the trade mark applied for be registered in respect of the following: goods made from paper or pulp as substitutes for textile goods, namely face-cloths, handkerchiefs, table-napkins, wrappers, doyleys, babies-napkins, in class 16. The respondent to pay three fifths of the costs of the appellant of the appeals on the basis that they were heard together.

At the conclusion of argument Windeyer J. delivered judgment. [This judgment is a revised transcript of the judgment delivered orally by his Honour at the end of the argument with incorporated in it his Honour's reasons for his rulings on certain matters which were disposed of in the course of the argument.]

Windeyer J.

I have come to a conclusion in this matter and I do not think that any good purpose would be served by my reserving my decision, except that I might express my reasons better and in a more orderly fashion; but I hope to state them clearly enough for the parties to know both the result and my reasons. I may elaborate these when I revise the transcript.

The matters before me are two applications to register as a trade mark the word "Coldex". The question in each case is whether the registration should be refused because of the presence on the register of the trade mark "Kotex" and the use of that mark since 1936 in relation to articles, which have been in these proceedings called sanitary napkins or sanitary pads, used by women during periods of menstruation.