Seven Up Company v OT Limited [1947] HCA 59

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Bowhunters

He (pons 3 Wali boay 'albioon A201 BU in Westin on fio rat ie 700) 51 1PR (2000) 180 Gb geerin {HIGH COURT OF AUSTRALIA.] 19 409) 6p THE SEVEN UP COMPANY . neg . APPELLANT; APPLICANT, AND 0.7. LIMITED ANDANOTHER . . —. ~—s.. REsPonvE! Responvents,

Trade Mark—Rectification of register—Expunging mark—Similar mark used yo op 9 extensively in foreign country—No user in Australia—Absence of fraud Neue Knowledge of existence of similar foreign mark—Trade Marks Act 1905-1936 = <4 (Vo. 20 of 1905—No. 75 of 1936), #4. 71, 72, 114. Bowtke

In the absence of fraud it is not unlawful for a person to become the May 16, 26. tered proprietor under the Trade Marks Act 1905 been used, however extensively, by another person as a mark for similar goods inva foreign country provided the foreign mark has not been used at all in

Australia at the date of the application for registration.

36 of a mark which has wijians J

Sypyey, Aug. 19.

The knowledge that a mark is registered in another country is irrelevant Pathan C4,

in considering whether the registration of the mark would be likely to cause Starke JJ deception in Australia,

Decision of Williams J. affirmed.

Appran from Williams J.

Upon an application made on 12th March 1940 on behalf of the Seven Up Company, a corporation duly registered and inc 'orporated under the laws of the State of Missouri, United States of America,

for the registration of the trade mark (hereinafter referred

to as " 7Up") in class 44, the Registrar of Trade Marks stated that pursuant to s. 25 of the Trade Marks Act 1905-1936 he would not register that trade mark because of the prior registration of the

trade mark (hereinafter referred to as "8 UP") in the

same class by O.T. Ltd. of Prahran, Victoria.