James F McKenzie and Co v Leslie and Leslie [1909] HCA 38

OF AUSTRALIA. 247

Special leave to appeal rescinded. Re- H.C. * A. pondent to pay the costs of the appeal ial

and of the motion. One set of costs Hau v. only. CosteLLo.

Solicitors, for the appellant, Perey D. Cox by H. 0. Ellison Rich.

Solicitors, for the respondent Costello, Kennedy & White by Sullivan Brothers.

Solicitors, for the respondent Minister, J. V. Tillett, Crown Solicitor for New South Wales.

CaS We [HIGH COURT OF AUSTRALIA] JAMES F. McKENZIE & Co. . : . APPELLANTS; APPLICANTS, AND E. A. LESLIE ano J.R. LESLIE. z . RESPONDENTS. OPPONENTS,

ON APPEAL FROM THE REGISTRAR OF TRADE MARKS.

Trade Mark—Registration— Trade Marks not identical—Likelihood of deception— ¥, C. oF A.

Honest concurrent user in one State—Conditions as to mode of user—Trade 1909. Marks Act 1905 (No. 20 of 1905), secs. 6, 28, 44, 114—T'rade Marks Act 1865 = O— - _ (N.S. W.) (No. 9 of 1865), seca. 2, 4, 7. Mexzourxe,

: June 3, 4, 7, A. had for over 20 years used two trade marks, one consisting of the word 14.

"Excelsior" and the other a device containing that word, in respect of baking = —— powder, in New South Wales, but chiefly in one district thereof. B. had fifth Ov, i during the same period used a trade mark, consisting of a device containing Higgins JJ.

§ the word " Excelsior," also in respect of baking powder, in New South Wales,

HIGH COURT [1909.

but in a different district. In 1886 B. obtained in New South Wales regis- tration of his trade mark under the 7'rade Marks Act 1865 (N.S. W.)

On applications by A. for registration of his trade marks for the Common- wealth, the Registrar granted the applications limited as to user to the States other than New South Wales.

Held, that, the marks not being identical, and there having been honest concurrent user for the period mentioned, A.'s marks should be registered, subject with respect to New South Wales to conditions as to mode of user.