Kaye v Attorney-General for Tasmania [1956] HCA 3

H. C. oF A.

1956. ew

W. D. & H. O. WILLs

(AusTRALIA) Lrp.

v.

ROTHMANS Lrp.

Dixon C.J.

MeTiernan J. Williams J. Webb J. Taylor J.

HIGH COURT [1956.

of the appellant. There is no evidence whatever how or why they were placed there. Presumably they were placed there when the packets were appropriated to fulfil the orders of the Australian consumers. Even if they were placed there at the request of the appellant, its case would not be assisted. The words of the sticker are vague and ambiguous. An interpretation that would suit the appellant best would be that they are a notification to the Australian consumers that the cigarettes which they had purchased from the British-American Tobacco Co. had been manufactured in the United States of America for the appellant and that the appellant was the proprietor of Pall Mall cigarettes sold in Australia. From this it might be inferred that the sale of the packets in the United States by the British-American Tobaeco Co. to the Australian consumers was made on behalf of the appellant. But this would not be a use of the mark in Australia. It would be a use of the mark in the United States where the goods were offered for sale and sold. It was only there that the mark was being used for the purposes of trade. The appellant was not offering for sale or selling any Pall Mall cigarettes in Australia either directly or indirectly. There is nothing to prevent a trader who is the pro- prietor of a trade mark registered in Australia using such a mark in the course of carrying on a trade abroad. But the use of the mark abroad would not be a use which could be protected by the Australian , Trade Marks Act and it could not avail him if an application was made under s. 72 to remove his mark from the register for non-user in Australia. In our opinion Fullagar J. was right and the appeal