Farley (Aust) Pty Ltd v J R Alexander and Sons (Qld) Pty Ltd [1946] HCA 29

OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.)

HY (AUST.) PROPRIETARY LIMITED . — Appticant ;

AND

ALEXANDER & SONS (QUEENSLAND) |p wen -ROPRIETARY LIMITED A ay Brae ge yar, of register—Expunging trade mark —" Person aggrieved" fC. oF A. Fraud "-——Trade Marks Act 1905-1936 (No. 20 of 1905—No. 75 of 1936), 1946.

ead

A person who, prior to the registration of a trade mark, has used the mark — SY ' the same or a similar class of goods and is still in the business, is a" person Sep eved " within the ee of 8. 71 of the T'rade Marks Act 1905-1936.

Williams J.

ited to fraud on the Registrar of Trade Marks but applies to regis- of trade marks procured by fraud upon either the Registrar or

rley (Aust.) Pty. Ltd. applied to the High Court by way of under s. 71 of the Trade Marks Act 1905-1936, filed on 15th , for the removal from the register of trade marks of a s anark registered from 19th April 1939 by J. R. Alexander & (Queensland) Pty. Ltd. and consisting of the word " Buz " in class 2 in respect of slow-burning sticks and coils for and killing mosquitoes and pests. application was heard before Williams J. in whose judgment er the material facts are sutliciently set forth.

Taylor, for the applicant. vA Windeyer, for the respondent. » for the Registrar of Trade Marks.

b ; Cur, adv. vult.

J. delivered the following written judgment :—This — sept. 19 ion under s. 71 of the Trade Marks Act to remove from the ' a trade mark consisting of the word " Buz" registered 2 in respect of slow burning sticks and coils for repelling

488 HIGH COURT

H.Ceor A. and killing mosquitoes and pests. The trade mark was 1 1946. tered from 19th April 1939, upon the application of the respon ~~ which claimed to be the proprietor of the mark. The noti

of motion was not filed until 15th July 1946, that is to say until a period of more than seyen years had expired from the of the original registration. The respondent has continuously the mark since the date of registration as a trade mark for mosq coils which it has manufactured and sold, so that the registratio if originally valid, is not open to attack under s. 72. The groun taken in the notice of motion as amended at the hearing are tl fore those excepted from the operation of s. 51a, that the ori tration was obtained by fraud and that the mark off against the provisions of s. 114 of the Act.