Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82

High Court of Australia Kitto J. Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgment was delivered by:—

Nov. 16, 1953 Kitto J.

This is an appeal under s. 44 of the Trade Marks Act 1905-1948 against a decision of the Law Officer allowing an appeal from the Registrar of Trade Marks. The Registrar had before him an application, made by one R. A. Houghton under his trade name of Southern Cross Refrigerating Co., for the registration of a trade mark consisting of the words "Southern Cross" in respect of gas absorption refrigerators and electric refrigerators and parts thereof. The application was opposed by the present appellant, Toowoomba Foundry Pty. Ltd., upon the ground, in effect, that the registration applied for was precluded by the provisions of s. 25, or alternatively of s. 114, of the Act. The Registrar upheld the objection, being of opinion that both the sections mentioned stood in the way of the application. The Law Officer, on the other hand, considered that s. 25 did not apply, and he was satisfied that s. 114 did not prevent registration of the mark if it were made subject to the condition that the mark should be applied to domestic refrigerators only. He accordingly granted the application upon this condition.

The application for registration was lodged on 23rd April 1947, and it is in relation to that date that I must consider the evidence which has been adduced on this appeal. It differs considerably from the material which was before the Registrar and the Law Officer, for the parties have taken full advantage of the fact that an appeal under s. 44, notwithstanding its name, is a proceeding in the original jurisdiction of the Court: Jafferjee v. Scarlett [1] .