mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The Lardil Peoples v State of Queensland [2004] FCA 298
Outcome: referred to
There have been cases where separate groups have asserted traditional rights in respect of discrete areas of land and sea, though perceiving themselves to be part of a broader community. Sometimes, as in The Lardil Peoples v Queensland [2004] FCA 298 , native title has been found to exist severally, in each of the groups identified in respect of discrete defined areas of land. On other occasions there have been native title determinations in favour of a composite community of estate holding, or language groups with appropriate territorial, economic and social links; see for example Ward v Western Australia (1998) 159 ALR 483 (" Ward first instance"), Daniel v State of Western Australia (No 2) [2003] FCA 1425 , Neowarra, and Alyawarr itself. 751 As to these two claims, Selway J found that the applicants had a native title right of exclusive possession in relation to the "land" other than the inter-tidal zone (by which his Honour meant, in essence, tidal waters), and a "non-exclusive" native title right in relation to the sea and the inter-tidal zone. Selway J followed Yarmirr , as explained in The Lardil Peoples v State of Queensland [2004] FCA 298 per Cooper J. In Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 (" Gumana (No 2) "), Mansfield J, after the death of Selway J, gave effect to his Honour's judgment by making appropriate orders, and formulating the determination of native title consequent upon Selway J's reasons.
Case: Wandarang People v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380
Outcome: referred to
As the Full Court observed, a number of native title claims have focussed attention upon the rights and interests of members of different groups, sometimes in competition with each other. On occasion, as in Yarmirr these are described as "estate groups", though it is recognised that they are linked by ancestral connection. At other times they are described as "language groups". See for example Wandarang People v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380, and Neowarra v State of Western Australia [2003] FCA 1402 (" Neowarra "). 598 It seems clear that at the heart of native title lie principles of descent. Professor Peter Butt, whose text " Land Law " (5 th ed, 2006) provides a helpful overview of this area, comments at 934, footnote 54: "Where traditional descent rules can no longer operate for example, through diminution of the primary native title-holding group neighbouring or related groups may operate as custodians for the area until the proper line of descent can be re-established or until they assume primary responsibility for the area themselves: see generally Re Waanyi People's Native Title Application (1954) 129 ALR 118 at 133-134 (Tribunal President, French J); Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380 at 400, 406, 410-11; De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 at 339-342."
Case: Ward v Western Australia (1998) 159 ALR 483
Outcome: referred to
There have been cases where separate groups have asserted traditional rights in respect of discrete areas of land and sea, though perceiving themselves to be part of a broader community. Sometimes, as in The Lardil Peoples v Queensland [2004] FCA 298 , native title has been found to exist severally, in each of the groups identified in respect of discrete defined areas of land. On other occasions there have been native title determinations in favour of a composite community of estate holding, or language groups with appropriate territorial, economic and social links; see for example Ward v Western Australia (1998) 159 ALR 483 (" Ward first instance"), Daniel v State of Western Australia (No 2) [2003] FCA 1425 , Neowarra, and Alyawarr itself.
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: applied
In Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (" Ward HC") the High Court dealt with a claim for a determination of native title in relation to an area of approximately 7900 km 2 within the East Kimberley region. The claim area included land and waters in the north of Western Australia and some adjacent land in the Northern Territory. The application included a claim to the right to maintain, protect and prevent the misuse of cultural knowledge. Some of the land within the claim area was subject to existing pastoral leases, but most was previously the subject of pastoral leases which had been abandoned, forfeited for non-payment of rent or non-compliance with lease conditions. 129 The High Court made it plain that where claims are made under the NT Act for rights defined in that Act, the determination of native title rights and interests was to be governed solely by the Act, and not by loose analogy with concepts developed from the common law. 130 On the question of extinguishment, the High Court held that the NT Act provided for the partial extinguishment or suspension of native title rights. Native title rights and interests could usefully be seen as a "bundle of rights", the individual components of which might be extinguished separately. The use of that metaphor had the advantage of drawing attention to the fact that there may be more than one right or interest, and also that there may be more than one type of right or interest. Not all rights and interests were capable of full or accurate expression as rights to control what others may do on or with the land. Questions of extinguishment first required the identification of the native title rights and interests alleged to exist. Whether rights defined in the NT Act have been extinguished by a grant of rights to third parties or an assertion of rights by the executive government required a comparison to be made between the legal nature and incidents of the right granted or asserted and the native title right asserted.
Case: Angelides v James Stedman Hendersons Sweets Limited [1927] HCA 34 ; (1927) 40 CLR 43
Outcome: considered
is well-established that the impression conveyed by the whole of the mark must be considered ( Angelides v James Stedman Hendersons Sweets Limited [1927] HCA 34 ; (1927) 40 CLR 43 at 68; Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 ; (2004) 209 ALR 1 at [100] ). In Angelides , Isaacs ACJ characterised as "trite law" the principle that in a composite mark, however prominent a single word may be, the whole trade mark must be considered. Different considerations apply to a word mark and a mark that includes a distinctive geometric device, so that even though words may be deceptively similar, the rendition of a particular device may take the trade mark outside of deceptive similarity ( Crazy Ron's [96]-[99] and [103]). As the Full Court noted in Crazy Ron's , each case must be considered on its own facts and each trade mark evaluated. Whether a word constitutes an essential feature of a composite mark is determined by the overall impression of the mark and the prominence and character of the word in question, as well as other words and devices present. The totality of the device mark must be considered ( Sports Cafe Ltd v Registrar of Trade Marks (1998) 42 IPR 552). That is, the visual form of presentation may render two marks different.
Case: Apand Pty Limited v The Kettle Chip Company Pty Limited [1994] FCA 1370 ; (1994) 52 FCR 474
Outcome: considered
first point to be made is that registration is sought of a composite mark, consisting of a number of elements. The parties do not dispute that it is necessary to look at the whole trade mark in context, including the size and prominence of the words, where they appear and the material surrounding the words. Clearly, in assessing the impact of the various elements of the trade mark as judged by the eye, factors such as the relative size of the letters and the prominence of the words are of importance ( Apand Pty Limited v The Kettle Chip Company Pty Limited [1994] FCA 1370 ; (1994) 52 FCR 474 at 488-489). Does the word BAVARIA as used in the trade mark connote the State of Bavaria? Accepting that the word alone may have that connotation the question, as I observed in [70], is whether the remaining elements of the trade mark dispel that association. As in Kettle Chip , where a separate "Smith's" logo that appeared on the appellant's packaging did not save the naming of a product "Country Kettle" from constituting passing off in relation to the respondent's product sold under the name "The Kettle Chip Co" or "The Kettle Chip", BBA submits that HOLLAND does not save Bavaria NV's product from representing a Bavarian origin or association. However, in the absence of direct evidence from consumers one way or the other, my view is that the reasonable consumer would not fail to observe the three references to "Holland" which, at least, neutralise the connotation with the State of Bavaria. It follows that if the consumer were interested in the source of the beer, an examination of the label bearing the trade mark would indicate an origin in Holland. Further, Bavaria NV submits that, so far as consumers are concerned, a reference which might connote an origin is not necessarily determinative for the consumer of the place where the beer is made. This is borne out by research which showed that the Australian consumer sees European beers generally as being from Europe but does not distinguish between different European countries. There is no basis for BBA's assertion that the Australian consumer would associate the trade mark with a State coat of arms.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) [2008] FCA 470 ; (2008) 75 IPR 557
Outcome: cited
question is whether, by use of the trade mark, there would be a contravention of the Trade Practices Act by a representation that, in all the circumstances, is made by Bavaria NV to a hypothetical ordinary and reasonable member of the class constituted by prospective purchasers of beer ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [103] ; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) [2008] FCA 470 ; (2008) 75 IPR 557 at [89] ). Does the trade mark represent that the Bavaria NV beer originates in Bavaria or that it has a quality, reputation or other characteristic attributable to beer brewed in Bavaria?
Case: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
question is whether, by use of the trade mark, there would be a contravention of the Trade Practices Act by a representation that, in all the circumstances, is made by Bavaria NV to a hypothetical ordinary and reasonable member of the class constituted by prospective purchasers of beer ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [103] ; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) [2008] FCA 470 ; (2008) 75 IPR 557 at [89] ). Does the trade mark represent that the Bavaria NV beer originates in Bavaria or that it has a quality, reputation or other characteristic attributable to beer brewed in Bavaria?
Case: ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302
Outcome: cited
evidence concerning tourism and travel does not, of itself, establish recognition by consumers in Australia of the association of "Bavaria" with beer, either by oral reference or by reference to a trade mark. The evidence does no more that form a basis from which, without more, BBA seeks to draw conclusions that Australians read such tourist guides and that those who read them or who were born in Europe or have visited Bavaria become aware of Bavaria's reputation for beer and remember that fact so that, when they see the trade mark containing the word BAVARIA, they conclude that the beer sold under the trade mark is from Bavaria. While the tourist guides may have some relevance, neither they nor the other material on population movements, alone or together, form a sufficient basis from which to draw the conclusions that BBA seeks to draw as to the connotation that would be drawn from the trade mark by the Australian consumer ( ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 346 350 per Lockhart J). BBA also says that Bavaria has a reputation for beer of excellence and fine quality and refers to the evidence of the required methods of brewing. However, the Bavarian method of brewing is not the same as an association with the geographical region of Bavaria. There is no evidence to suggest that the Australian consumer would be aware of the details of the Bavarian method of cold fermentation of beer or that the ingredients for the preparation of bottom fermentation beer and top fermentation beer is protected by statute, which has its roots in the "Bavarian Purity Law" of 1516. In any event, BBA does not say that these features would be known to the average Australian consumer. Rather, it submits, they support the reputation of Bavaria in Australia as a place where beer is brewed and, additionally, beer of high quality. Neither party contends that consumers in Australia would see BAVARIA and assume that the beer was brewed according to the Bavarian style or method. The consumer
Case: Pfizer Products Inc v Karam [2006] FCA 1663 ; (2006) 237 ALR 787
Outcome: cited
Bavaria NV emphasises, s 43 of the Act requires not only that the connotation of the trade mark be established but also that, because of the connotation, the use of the trade mark in relation to the goods will be likely to deceive or cause confusion. The likelihood of deception or confusion must flow from the secondary meaning inherent in the mark itself ( Pfizer Products Inc v Karam [2006] FCA 1663 ; (2006) 237 ALR 787 at [53] per Gyles J). The underlying purpose of s 43 is to prevent the public being deceived or confused as to the nature of the goods by reason of the secondary meaning connoted by the mark in question ( Pfizer at [53]). Even if there were a potential signification of geographical origin, the question is whether the use of the trade mark would deceive or cause confusion by reason of that use. Bavaria NV submits that mere assertion of the connotation that the beer originates in Bavaria is not sufficient. BBA must, it says, prove that connotation as a matter of fact, on the evidence. Whether there is a real and not a trivial danger of deception or confusion, whether use would be likely to deceive or confuse, is a question of fact based on conditions as established to apply at the priority date, although, Bavaria NV accepts, one is permitted to look at post-priority date evidence in assessing deception or confusion as at the priority date. That is, Bavaria NV says, the two questions for the purposes of s 43 of the Act are: Does the word BAVARIA have a connotation with the State of Bavaria in Germany? Would the consumer be deceived or confused by the word BAVARIA and any connotation that it refers to the State in Germany and think that Bavaria NV's beer was of Bavarian origin?
Case: Polo Textile Industries Pty Limited v Domestic Textile Corporation Pty Limited [1993] FCA 203 ; (1993) 42 FCR 227
Outcome: cited
normal and fair use of the mark may affect and reflect the way in which the consumer evaluates the prominence of the features of the trade mark. In circumstances where Bavaria NV's beer has been marketed by reference to "Bavaria", "Bavaria Beer" and "Bavaria Holland" and it is by those names that the beer may be known, it is appropriate, in considering whether the mark is inherently adapted to distinguish Bavaria NV's goods, also to take into account that use of the trade mark ( Polo Textile Industries Pty Limited v Domestic Textile Corporation Pty Limited [1993] FCA 203 ; (1993) 42 FCR 227 at 231 citing de Cordova v Vick Chemical Co (1951) 68 RPC 103 at 105 106). BBA submits that, despite the existence of a composite mark, a conspicuous part of a label or the distinctive feature of a label can be said to be the true trade mark rather than the label as a whole, as a matter of impression. BBA submits that the imperfect recollection of the consumer may omit the specific devices used in the trade mark and the word HOLLAND and may simply recall (or notice) BAVARIA. However, as noted in [55], while a trade mark consisting of words and devices may be shortened to words, that does not mean that other words and devices are eliminated from consideration or that the consumer rejects them, ignores them, or fails to recall them.
Case: Re The Registered Trade Mark "Yanx"; ex parte Amalgamated Tobacco Corporation Limited [1951] HCA 28 ; (1951) 82 CLR 199
Outcome: cited
make the following preliminary observations in relation to the trade mark and to the question whether other persons may legitimately wish to use the word "Bavaria" in connection with their goods because of its geographical reference and whether the trade mark is capable of distinguishing Bavaria NV's goods from the goods of other traders: The trade mark is not just the word "Bavaria" or, put another way, it is not used simpliciter or with no addition save for a description or designation of the goods. The use of the trade mark for beer does not save the word "Bavaria" from carrying its prima facie geographical signification. This is not a case where the goods for which the trade mark is used are remote from the geographical location where those goods are produced and with which the goods are associated (cf. discussion in Colorado at [29] per Kenny J). Bavaria is a place in Germany where beer is produced. This is likely to continue in the future. As at 2005, there were 623 breweries in operation in Bavaria. Other beer makers in Germany may want to use the word "Bavaria" or "Bavarian", on or in connection with their beer, either to signify the brewing style or to indicate that their beer comes from Bavaria. Bavaria NV does not suggest that the word "Bavaria" alone would be registrable for beer. It is unlikely that it would be as, for the reasons given in Clark Equipment , Colorado and University of Oxford , it would not be capable of distinguishing or acquiring distinctiveness for beer. Bavaria NV's beer was named partly in recognition of the fact that there is a style of beer-making associated with, or originating from, Bavaria. Bavarian breweries produce a wide variety of beers, for example blonde and dark beers, pilsener and export beers, wheat beers and diet beers. There is no uniform type of Bavarian beer. The word BAVARIA is prominent in the trade mark. If it is so conspicuously displayed on the label that the fact of its use would suggest that the beer comes from Bavaria, the question is whether the remaining elements of the mark dispel that association ( Re The Registered Trade Mark "Yanx"; ex parte Amalgamated Tobacco Corporation Limited [1951] HCA 28 ; (1951) 82 CLR 199 at 206 per Williams J). Many of the elements of the trade mark, namely the non-word elements such as the heraldry, would not, to the average consumer, indicate a particular country. A coat of arms and old-world emblems evoke Europe. Other brewers in Bavaria use the word "Bavaria" across a label with sprigs of barley and a crest. Examples from brewers who sell into the German market include:
Case: Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020 ; (1999) 93 FCR 365
Outcome: cited
do not accept that, if none of the grounds of opposition have been established, there is still a discretion to refuse to register the trade mark. The authors of Shanahan's Australian Law of Trade Marks &amp; Passing Off (3 rd edition, Lawbook Co, 2003) express the view at [11.25] that the language of s 55 does not support the inference of any discretion. Section 55(b) permits conditions or limitations to be imposed to reflect, for example, successful opposition in respect of some but not all of the classes of goods specified. It does not add a ground of opposition. The decision to reject an application regularly made must be based upon positive satisfaction that a ground for rejecting it is made out (Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020 ; (1999) 93 FCR 365 at [47] per French J). Section 55 does not provide for an ambulatory discretion to operate on the Registrar or the Court to refuse a trade mark application which otherwise does not offend any of the particular grounds of opposition provided for in the Act which are relied upon. I shall, however, consider briefly the matters relied upon by BBA, which were raised in a rather desultory fashion and did not constitute the main attack on the trade mark. BBA relies on the evidence of Mr Petrus Swinkels that Bavaria NV changes the label for its beer every five to ten years and that its present label is different from the trade mark. There is evidence of use of the trade mark and the subsequent change of label, from which an absence of intention to use the trade mark in the future could be inferred. There is little evidence available concerning Bavaria NV's intention to use the trade mark as at the priority date or as at the hearing. This is understandable as there was no issue directed to that question in the pleadings. No lack of intention to use the trade mark as at the priority date has been established. BBA submits that there remains a discretionary factor arising from the fact that the label was changed in or around 2006. It seeks to draw an inference that this establishes a lack of intention to use as at 2006 and a lack of use and intended use as at the date of hearing. I am not prepared to draw those inferences in the absence of an opportunity to Bavaria NV to provide evidence. The evidence does not go so far as to say that, once a label is changed, a previous label is never to be used. Nor does it address the question of possible future use of the trade mark if it were registered.