Innes v Lincoln Motor Company [1923] HCA 52

606 HIGH COURT

{HIGH COURT OF AUSTRALIA.}

INNES . Crees i : : : . . APPELTAR APPLICANT, AND THE LINCOLN MOTOR COMPANY . - . Responpe OPPONENT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA,

H.C. or A, [rade Mark —Registration—Imposition of condition—Disclaimer of right to exc ee use of added matter—Discretion of Registrar and of Court—Bviden Marks Act 1905-1912 (No. 20 of 1905—No. 19 of 1912), secs. 4, 16 (1) (e),

MELBOURNE, 'The appellant applied for the registration of a trade mark consisting of «

design of which the word " Lincoln" was a most prominent feature, and th application was opposed. Nearly three years after the application was m: Baie, ' the Deputy Registrar decided that the mark should he registered, holding and Starke JJ. to a large section of the public the word '' Lincoln " in fact denoted the go of the appellant in the market. On appeal by the opponent, the Su Court of Victoria decided that the mark should be registered provided th applicant disclaimed any right to the exclusive use of the word " On appeal to the High Court,

Held, that, as there was no evidence to justify a finding that the "Lincoln" in fact denoted the goods of the appellant in the market, was no reason for interfering with the exercise of the discretion given

Supreme Court by sec. 24 of the Trade Marks Act 1905-1912 to impo condition as to disclaimer.

Querre, whether evidence of user after the date of the application was adi sible to prove a right to exclusive use.

Decision of the Supreme Court of Victoria (Irvine C.J.): In re Innes's Tra Mark, (1923) V.L.R., 359; 44 A.L.T., 174, affirmed.

a 2 0.L.R.] OF AUSTRALIA,

EAL from the Supreme Court of Victoria.

On 17th September 1919 Charles Innes, who traded as the Lincoln otor Car Co., applied for the registration of a trade mark in respect motor-cars and motor-car chassis. An illustration of the mark ppears in a previous volume of the Commonwealth Law ports (1). In his application the applicant stated: "I do not im the registration of this trade mark under the special provisions of sec. 16 (1) (e) of the Trade Marks Act 1905-1912, in regard to names, signatures or words." The application was pposed by the Lincoln Motor Co. On 4th August 1922 the uty Registrar gave his decision dismissing the opposition and ing the application. From that decision the applicant appealed o the Supreme Court of Victoria. The appeal was heard by Irvine .J., who made an order that the trade mark should be entered pon the register 'only provided the . . . applicant disclaims ." otherwise the application should be dismissed : Jn re Innes's Trade Mark