Sym Choon & Co Ltd v Gordon Choon's Nuts Ltd [1949] HCA 54

High Court of Australia Latham C.J. Dixon and Williams JJ. Sym Choon & Co Ltd v Gordon Choon's Nuts Ltd [1949] HCA 54

ORDER Appeal allowed with costs. No order as to costs of Registrar. Decision of Deputy Registrar set aside. Opposition allowed, respondent to pay appellants' cost of opposition proceedings before Deputy Registrar. Application of respondent for registration of trade mark refused.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 24 Latham C.J.

This is an appeal from a decision of the Deputy Registrar of Trade Marks dismissing opposition by Sym Choon & Co. Limited and Thomas George Sym Choon to an application made by Gordon Choons Nuts Limited on 28th January 1946 for the registration of a trade mark. The application is for the registration in respect of fireworks of a trade mark consisting of a device of a human body constructed of fireworks, wearing a cavalier's hat and standing between a boy and girl whose hands he is holding, the bodies of the boy and girl consisting of peanuts. The central figure suggests Guy Fawkes—especially when used in connection with fireworks. The name Gordon Choons Nuts Limited is also contained in the trade mark in respect of which registration is sought.

The opponent Thomas George Sym Choon is in effect the proprietor of the opponent company, Sym Choon & Co. Limited. That company was formed in 1931 and took over the business of a partnership, Sym Choon & Co. In 1936 it went into liquidation and Thomas George Sym Choon carried on the company. Gordon Sym Choon, who had been a shareholder in the company, went into business on his own account and formed the applicant company Gordon Choons Nuts Limited. T. G. Sym Choon is registered as the proprietor in respect of nuts (not of fireworks) of a trade mark No. 48085 consisting of two figures (boy and girl) in the form of peanuts. The words "Peanut Twins" are frequently used with the mark, but are not part of the registered mark. The opponent company is the registered proprietor of a trade mark No. 92997 in respect of fireworks which has been used since 1930, the application for the registration of which was made on 7th October 1947. The application has now been granted and registration dates back to the date mentioned: Trade Marks Act 1931-1948, s. 47. This trade mark consists of a device of a human figure being propelled in a condition of excitement from an exploding barrel which bears the words "Guy Fawkes." The hat is similar to that appearing in the applicant's mark.