Estex Clothing Manufacturers Pty Ltd v Ellis & Goldstein Ltd [1967] HCA 51

High Court of Australia Windeyer J. Barwick C.J. McTiernan, Taylor and Owen JJ. Estex Clothing Manufacturers Pty Ltd v Ellis & Goldstein Ltd

ORDER Appeals dismissed with costs. Windeyer J. delivered the following judgment:—

These are two motions, heard together, for the removal from the Register of Trade Marks of two trade marks of which the respondent is the registered proprietor. The motions are founded upon s. 23 (1) (b) of the Trade Marks Act 1955-1958 Cth, it being alleged that two continuous periods of not less than three years had elapsed during which there was no use in good faith of the trade marks by the respondent. The same two trade marks are in question in each case. There are two motions because two different periods of alleged non-use are relied upon. One period is from 30th June 1958 to 30th June 1961; the other is from 21st September 1960 to 21st September 1963. The marks in question are as follows:—

(a) No. 97,535: The word "EASTEX"; registered in class 38 in respect of "outer clothing for women" for fourteen years from 30th December 1948; the registered proprietor being described as "Ellis & Goldstein Limited, clothing manufacturer, a British company, of 20/24 Commercial Street, London, E. 1, England". This trade mark has been renewed for a further period of fourteen years from 13th December 1962. (The certificate tendered shows the date as 13th December; this may be a misprint for 30th December.) A change of the registered proprietor's address to Brick Lane, London, was noted on 6th October 1964.

(b) No. 111,939: The word "EASTEX" in a form of italic script followed by "Range 52"; registered in class 38 in respect of "complete articles of clothing" for fourteen years from 21st October 1952; the respondent being again the registered proprietor, of the same address, and with a change of address later duly noted. This trade mark has also been renewed for a further period of fourteen years, in this case from 21st October 1966.