Case: CA Henschke &amp; Co v Rosemount Estates Pty Limited (2000) 52 IPR 42
Outcome: distinguished
Those authorities, as well as authorities of Full Courts in CA Henschke &amp; Co v Rosemount Estates Pty Limited (2000) 52 IPR 42 and Registrar of Trade Marks v Woolworths Limited [1999] FCA 1020 ; (1999) 93 FCR 365, were discussed by the Full Court in Crazy Ron's at [80] [90]. 196 There was nothing to suggest that Shin-Sun exercised quality control in the way in which the executors of the estate of Cyril Henschke exercised control over the Henschke partnership: Henschke at [67]. 197 Nor did Shin-Sun exercise "financial control" over Nature's Hive's trading activities within the meaning of s 8(4). This is because, in my view, the financial control to which the subsection is directed is a legally enforceable power of control which did not exist between Shin-Sun and Nature's Hive. 198 Ms Shin's evidence was that Nature's Hive did not have a bank account. I accept this evidence but it does not follow that Shin-Sun exercised financial control within the meaning of s 8(4). What that subsection requires is evidence of the exercise of financial control over trading activities, perhaps in the way in which a parent company may exercise control over a wholly owned subsidiary. Here, there was no such relationship and any control by Shin-Sun was revocable: Henschke at [69]. 199 Nature's Hive and Shin-Sun have different shareholders. They have common directors but that has only been the position since July 2006. Of course, in a practical sense, it may be unlikely that Ms Shin would remove her parents as directors of Nature's Hive. But that is not an answer to the separate corporate identity of Shin-Sun and the power of Ms Shin as the majority shareholder to revoke any exercise of control flowing from common directorships. 200 The "control" which is contemplated by s 8(5) would seem to be as wide as the "connection in the course of trade" to which Aickin J referred in Pioneer at 683. His Honour said that the connection may be slight, such as selection or quality control or control of the user in the sense in which a parent company controls a subsidiary: see also Henschke at [70]. 223 Section 101(3) confers a broad discretion on the Court: Henschke at [72]. The discretion is conferred so as to give the Court a sufficient degree of flexibility to give effect to public interest considerations: Ritz Hotel at 221-225. 224 In Henschke , the Full Court declined to interfere with the primary judge's exercise of discretion in a manner favourable to the registered proprietor under s 101(3). However, I do not consider that the approach taken in that case assists Shin-Sun because the primary judge found that there was no public interest adversely affected by the use of the mark: see at [72]. 225 In my view, Henschke was concerned with a very distinctive family business where the members of the family who were using the mark were the persons who gave the mark its value. That was why the primary judge could see no useful purpose to be served by removing the mark so as to compel a fresh application to be made by the "Henschke interests." 226 Accordingly, I would not exercise my discretion in favour of Shin-Sun in the present proceedings. 227 Section 92 in the form in which it stood when Health World filed its non-use application provided that a person aggrieved had standing to bring an application.