mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Torpedoes Sportswear Pty Ltd v Thorpedo Enterprises Pty Ltd [2003] FCA 901 ; (2003) 59 IPR 318
Outcome: cited
is also clear from the cases that ownership of a trade mark can vest in another without formal assignment, for example in a corporate alter ego of the creator of the trade mark. Examples of the application of this principle are Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 ; (2004) 209 ALR 1 and Torpedoes Sportswear Pty Ltd v Thorpedo Enterprises Pty Ltd [2003] FCA 901 ; (2003) 59 IPR 318. I shall consider these cases later in this judgment. However, the respondent relies in its written submissions on Revlon Inc v Cripps &amp; Lee Ltd [1980] FSR 85 , Polo Textile Industries v Domestic Textile Corporation Pty Ltd [1993] FCA 203 ; (1993) 42 FCR 227 , Crazy Ron's [2004] FCAFC 196 ; (2004) 209 ALR 1 and Torpedoes [2003] FCA 901 ; (2003) 59 IPR 318. As the respondent has relied on these cases in the context of referring to s 27(1) of the Act, I can only infer that the respondent claims that, at the filing date, there was implied authorisation by The Food Channel Pty Ltd of the respondent to use trade mark 967804 within the meaning of s 27(1)(b)(ii). Was there implied authorisation to use? The cases cited by the respondent support the proposition that a person may be impliedly vested with ownership by the original owner of a trade mark such as, for example, as a parent company causing a subsidiary to apply for ownership. So, for example, in Torpedoes Sportswear [2003] FCA 901 ; (2003) 59 IPR 318 while the relevant trade mark was originally owned by Mr Thorpe, it was not in contention that it was registered, with his authority, in the name of a company under his control, and that that company was the "owner" of the trade mark within the meaning of the Act. However ownership impliedly vested and resulting in an application for registration by the person so vested (which would satisfy s 58) should not be confused with an implied intention of a registered owner to authorise use of the trade mark by related parties (which is relevant under s 27(1)(b)(ii)). They are distinct concepts.
Case: Watson v Foxman (1995) 49 NSWLR 315
Outcome: cited
52 Trade Practices Act , provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. It is ordinarily necessary for a party claiming breach of s 52 to prove to the reasonable satisfaction of the Court the nature of the alleged conduct and the circumstances which rendered the conduct misleading: Watson v Foxman (1995) 49 NSWLR 315 at 318. Principles relevant to consideration of claimed breach of s 52 include the following: In these proceedings the evidence clearly shows that the applicant is a television programming network, web site and publisher specialising in the subject of food, and that it distributes internationally television programmes focussing on the subject of food. The evidence before the Court as to the activities of the respondent reveals that it is a company with one shareholder and one director (Mr Lawrence), and that its activities have included distribution of free recipes, menus and leaflets to promote, inter alia , the sale of meat. I consider it very likely that, while there could be a transitory association between the products of the applicant and the respondent in the mind of a member of the public, the brief association would be quickly dispelled on closer association with the products. In any event, as I have observed, no submissions have been put to the Court to substantiate a case pursuant to s 52 Trade Practices Act in the terms which I have outlined (or otherwise), and no evidence put to the Court to support such a case. Passing off
Case: Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187
Outcome: cited
Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a 'no case' submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) ( Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a 'no case' submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence ( Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an 'inflexible rule' ( Compaq Computer Australia Pty Ltd v Merry &amp; Ors (1998) 157 ALR 1 at page 7) and not necessarily the 'right course in every kind of case' ( Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must 'give way to particular circumstances' in the exercise of the discretion ( Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation ( Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case ( J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) &amp; Ors (No. 2) (1992) 38 FCR 458.
Case: Compaq Computer Australia Pty Ltd v Merry &amp; Ors (1998) 157 ALR
Outcome: cited
Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a 'no case' submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) ( Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a 'no case' submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence ( Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an 'inflexible rule' ( Compaq Computer Australia Pty Ltd v Merry &amp; Ors (1998) 157 ALR 1 at page 7) and not necessarily the 'right course in every kind of case' ( Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must 'give way to particular circumstances' in the exercise of the discretion ( Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation ( Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case ( J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) &amp; Ors (No. 2) (1992) 38 FCR 458. 85 Nevertheless, the generality of the usual practice is well recognised and approved by the High Court ( Stevenson v Barham (supra) at page 202; Tozer Kemsley &amp; Millbourn (Australasia's Asia) Pty Ltd v Collier's Interstate Transport Services Ltd (1955 1956) [1956] HCA 6 ; 94 CLR 384 at pg 402 per Fullagar J), recognised by the Federal Court ( James &amp; Ors v Australia and New Zealand Banking Group Ltd (1985 86) 64 ALR 347 per Toohey J at pg 400 (Appendix); Compaq v Merry (supra) at pgs 6 and 7) and applied in State superior courts (see the discussion of the authorities by Finkelstein J in Compaq v Merry (supra) at pages 6 and 7).
Case: Parry v Aluminium Corporation [1940] WN 44
Outcome: cited
Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a 'no case' submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) ( Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a 'no case' submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence ( Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an 'inflexible rule' ( Compaq Computer Australia Pty Ltd v Merry &amp; Ors (1998) 157 ALR 1 at page 7) and not necessarily the 'right course in every kind of case' ( Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must 'give way to particular circumstances' in the exercise of the discretion ( Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation ( Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case ( J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) &amp; Ors (No. 2) (1992) 38 FCR 458.
Case: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) &amp; Ors (No. 2) (1992) 38 FCR 458
Outcome: cited
Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a 'no case' submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) ( Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a 'no case' submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence ( Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an 'inflexible rule' ( Compaq Computer Australia Pty Ltd v Merry &amp; Ors (1998) 157 ALR 1 at page 7) and not necessarily the 'right course in every kind of case' ( Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must 'give way to particular circumstances' in the exercise of the discretion ( Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation ( Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case ( J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) &amp; Ors (No. 2) (1992) 38 FCR 458.
Case: Tozer Kemsley &amp; Millbourn (Australasia's Asia) Pty Ltd v Collier's Interstate Transport Services Ltd (1955 1956) [1956] HCA 6 ; 94 CLR 384
Outcome: cited
Nevertheless, the generality of the usual practice is well recognised and approved by the High Court ( Stevenson v Barham (supra) at page 202; Tozer Kemsley &amp; Millbourn (Australasia's Asia) Pty Ltd v Collier's Interstate Transport Services Ltd (1955 1956) [1956] HCA 6 ; 94 CLR 384 at pg 402 per Fullagar J), recognised by the Federal Court ( James &amp; Ors v Australia and New Zealand Banking Group Ltd (1985 86) 64 ALR 347 per Toohey J at pg 400 (Appendix); Compaq v Merry (supra) at pgs 6 and 7) and applied in State superior courts (see the discussion of the authorities by Finkelstein J in Compaq v Merry (supra) at pages 6 and 7).
Case: James &amp; Ors v Australia and New Zealand Banking Group Ltd (1985-86) 64 ALR 347
Outcome: cited
Nevertheless, the generality of the usual practice is well recognised and approved by the High Court ( Stevenson v Barham (supra) at page 202; Tozer Kemsley &amp; Millbourn (Australasia's Asia) Pty Ltd v Collier's Interstate Transport Services Ltd (1955 1956) [1956] HCA 6 ; 94 CLR 384 at pg 402 per Fullagar J), recognised by the Federal Court ( James &amp; Ors v Australia and New Zealand Banking Group Ltd (1985 86) 64 ALR 347 per Toohey J at pg 400 (Appendix); Compaq v Merry (supra) at pgs 6 and 7) and applied in State superior courts (see the discussion of the authorities by Finkelstein J in Compaq v Merry (supra) at pages 6 and 7).
Case: Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54
Outcome: cited
The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a 'no case' submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the 'no case' submission turns solely on a question of law or jurisdiction ( Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud ( ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff's claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of 'no case' to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J.
Case: The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6
Outcome: cited
Put simply, the parties came to a case managed trial to have a trial and hear all the evidence once. If the respondents wish to contend, in the circumstances of these issues between these parties that 'no case' to answer arises on the evidence and as a matter of law, the fair and just disposition of the litigation required the orthodox application of the general rule. No special or differentiating circumstance was identified by the respondents to displace the orthodoxy of the general rule (see Prentice v Cummins [2002] FCA 1503 ; (2002) 124 FCR 67 at pgs 93, 94 and 95 and The Trustees of the Property of Cummins v Mary Cummins [2006] HCA 6). 305 See also, Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at pgs 304 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 per Stephen J at pgs 161 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act.
Case: Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171
Outcome: cited
It seems to me that in these circumstances, although Mr Broadway gave evidence with total honesty and with a view to expressing opinions he had formed about the matters the subject of his analysis with a view to assisting the Court, it would be inappropriate to rely upon the opinions formed by Mr Broadway. In making that observation, I make no criticism of the individual who I believe genuinely sought to assist the Court. In making these observations, I am conscious of the comments of Allsop J in Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 at [676] , the remarks of Gleeson CJ in HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at [39] to [43] and the observations of the Australia Competition Tribunal per Goldberg J (President) Mr Latta and Professor Round in Qantas Airways Limited [2004] ACompT 9 at [212] to [227]. The observations of the Australian Competition Tribunal on the use of expert evidence and particularly the role of the expert ought usefully be provided to any expert seeking to give evidence in Court proceedings. However, it seems to me that the underlying data drawn from the Australian Bureau of Statistics ("ABS" or "the Bureau") and material arising out of a 2001 study of the Australian beef industry by the Australian Bureau of Agricultural and Resource Economics ("ABARE") remains admissible and useful.
Case: HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414
Outcome: cited
It seems to me that in these circumstances, although Mr Broadway gave evidence with total honesty and with a view to expressing opinions he had formed about the matters the subject of his analysis with a view to assisting the Court, it would be inappropriate to rely upon the opinions formed by Mr Broadway. In making that observation, I make no criticism of the individual who I believe genuinely sought to assist the Court. In making these observations, I am conscious of the comments of Allsop J in Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 at [676] , the remarks of Gleeson CJ in HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at [39] to [43] and the observations of the Australia Competition Tribunal per Goldberg J (President) Mr Latta and Professor Round in Qantas Airways Limited [2004] ACompT 9 at [212] to [227]. The observations of the Australian Competition Tribunal on the use of expert evidence and particularly the role of the expert ought usefully be provided to any expert seeking to give evidence in Court proceedings. However, it seems to me that the underlying data drawn from the Australian Bureau of Statistics ("ABS" or "the Bureau") and material arising out of a 2001 study of the Australian beef industry by the Australian Bureau of Agricultural and Resource Economics ("ABARE") remains admissible and useful.
Case: Qantas Airways Limited [2004] ACompT 9
Outcome: cited
It seems to me that in these circumstances, although Mr Broadway gave evidence with total honesty and with a view to expressing opinions he had formed about the matters the subject of his analysis with a view to assisting the Court, it would be inappropriate to rely upon the opinions formed by Mr Broadway. In making that observation, I make no criticism of the individual who I believe genuinely sought to assist the Court. In making these observations, I am conscious of the comments of Allsop J in Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 at [676] , the remarks of Gleeson CJ in HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at [39] to [43] and the observations of the Australia Competition Tribunal per Goldberg J (President) Mr Latta and Professor Round in Qantas Airways Limited [2004] ACompT 9 at [212] to [227]. The observations of the Australian Competition Tribunal on the use of expert evidence and particularly the role of the expert ought usefully be provided to any expert seeking to give evidence in Court proceedings. However, it seems to me that the underlying data drawn from the Australian Bureau of Statistics ("ABS" or "the Bureau") and material arising out of a 2001 study of the Australian beef industry by the Australian Bureau of Agricultural and Resource Economics ("ABARE") remains admissible and useful.
Case: Bradshaw v McEwans Pty Ltd 217 ALR 1
Outcome: cited
The statistical data does not exclude the possibility that the circumstances confronting the abattoir in August 2002 presented a stock shortage. However, the applicant has no obligation to exclude such a possibility. To the extent the statutory presumption applies, it is not rebutted by the respondents by reliance upon the evidence of Mr Davis, Mr Delaforce or Mr Broadway. Moreover, the circumstances appearing in the evidence as I have described give rise to reasonable inferences concerning a reason for termination and subsequent refusal to employ which are not merely conflicting inferences of equal degree of probability. In drawing such inferences, their Honours Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd 217 ALR 1 at pg 6 observed: 'All that is necessary (in drawing a particular inference) is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' The general principle was put by their Honours at page 5 in these terms: 'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.'
Case: Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352
Outcome: cited
See also, Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at pgs 304 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 per Stephen J at pgs 161 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act.
Case: Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155
Outcome: cited
See also, Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at pgs 304 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 per Stephen J at pgs 161 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act.