High Court of Australia
High Court of Australia Kitto J. Re Carl Zeiss Pty Ltd's Application [1969] HCA 17
ORDER Order that the notice of motion be amended by omitting as the names of the respondents other than the Registrar of Trade Marks the names Carl Zeiss and V.E.B. Optik Carl Zeiss and substituting therefor Carl Zeiss Stiftung and V.E.B. Carl Zeiss respectively. Order pursuant to s. 23 of the Trade Marks Act 1955-1958 Cth that trade mark No. 5018 be removed from the register in respect of all the goods in respect of which it is registered, on the ground that, up to one month before the date of this application a continuous period of not less than three years had elapsed during which the trade mark was a registered trade mark and during which there was no use in good faith of the trade mark in relation to any goods by the registered proprietor or any registered user of the trade mark for the time being. Order that the respondents other than the Registrar of Trade Marks pay the costs of the applicant and of the Registrar of Trade Marks.
Cur. adv. vult.
Kitto J. delivered the following written judgment:—
May 2 Kitto J
This is an application under s. 23 (1) (b) of the Trade Marks Act 1955-1958 Cth for the removal of trade mark No. 5018 from the register. The only ground upon which the application is pressed is that up to one month before the date of the application, that is to say up to 20th April 1965, a continuous period of not less than three years had elapsed during which the trade mark was a registered trade mark and during which there was no use in good faith of the trade mark, in relation to the goods in respect of which it was registered, by the registered proprietor or a registered user.
The respondents (I shall use that word as not including the Registrar of Trade Marks) are described in the notice of motion as "Carl Zeiss, Carl-Zeiss-Strasse, Jena, Germany, and V.E.B. Optik Carl Zeiss, Jena, Germany". It is common ground that the former of these descriptions refers to Carl Zeiss Stiftung, and the latter to V.E.B. Carl Zeiss, both of Jena in East Germany.
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