Southdown Publications Pty. Ltd. & Ors. v. ACP Magazines Pty. Ltd. [2003] NSWCA 347

Reported Decision : 60 IPR 367

New South Wales Court of Appeal

CITATION : Southdown Publications Pty. Ltd. & Ors. v. ACP Magazines Pty. Ltd. [2003] NSWCA 347 HEARING DATE(S) : 23 September 2003 JUDGMENT DATE : 26 November 2003

JUDGMENT OF : Spigelman CJ at 1; Sheller JA at 14; Hodgson JA at 15 DECISION : 1. Appeal dismissed with costs. 2. Cross-claim dismissed.

CATCHWORDS : CONTRACT - Construction and interpretation - Whether "rights" referred to in a contract relating to a magazine were limited to the name of the magazine, or extended to the business of publishing the magazine and/or awards associated with the magazine. - TRUST - Trade marks - Application for registration - By reason of mistake, application made in name of entity different from that which had used mark and which was entitled to it - Whether intention to obtain registration for entity which had used mark and was entitled to it predominated over intention to obtain registration for named entity - Whether trust should be implied. Federal Commissioner of Taxation v. Murry (1998) 193 CLR 605 Ingram v. Little [1961] 1 QB 31 CASES CITED : Papas v. Bianco Investments Pty. Ltd. (2002) 82 SASR 581 Phillips v. Brooks Ltd. [1919] 2 KB 243 Porter v. Latec Finance (Qld) Pty. Ltd. (1964) 111 CLR 177 Southdown Publications Pty. Ltd. - first appellant PARTIES : Pacific Publications Pty. Ltd. - second appellant Jupelly Pty. Ltd. - third appellant ACP Magazines Pty. Ltd. - respondent FILE NUMBER(S) : CA 40411/03 COUNSEL : Mr. S. Finch SC with Mr. C. Moore for appellants Mr. A. Meagher SC with Ms. K. Richardson for responent SOLICITORS : Coudert Brothers, Sydney for appellants Gilbert & Tobin, Sydney for respondent