mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Shell Co (Aust) Ltd v Rohm and Haas Co [1948] HCA 27 ; (1948) 78 CLR 601
Outcome: applied
The applicants do not dispute par (a) in [121]. In Shell Co (Aust) Ltd v Rohm and Haas Co [1948] HCA 27 ; (1948) 78 CLR 601 at 625 and 627 Dixon J said: Before the passing of the Trade Marks Registration Act 1875 ... of the United Kingdom property in a trade mark was acquired by user. If a trader had habitually employed a mark in connection with his goods so that to the public it had come to denote or distinguish his goods, he was entitled to legal and equitable remedies to protect him against the use by rival traders of the same or similar marks .... ... ... an application to register a trade mark so far unused must, equally with a trade mark the title to which depends on prior user, be founded on proprietorship. The basis of a claim to proprietorship in a trade mark so far unused has been found in the combined effect of authorship of the mark, the intention to use it upon or in connection with the goods and the applying for registration. See also Aston v Harlee Manufacturing Co [1960] HCA 47 ; (1960) 103 CLR 391 at 398-399 and Shanahan's Australian Law of Trade Marks and Passing Off 3 rd ed (2003) 51-52. 131 Paragraph (k) assumes that ownership is to be tested as at the date of filing an application for registration. YD relied on the dictum of Kitto J in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 that in "applications for registration, the rights of the parties are to be determined as at the date of the application". In Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839 at [37] - [38] , the Full Court said: The basis of any claim to ownership of a trade mark so far unused is to be found in the combined effect of authorship of the mark, the intention to use it upon or in connection with goods or services and applying for registration of the mark - Shell Company of Australia Ltd v Rohm and Haas Company &amp; Anor [1948] HCA 27 ; (1949) 78 CLR 601 at 627 .... Authorship in that sense involves the origination or first adoption of the word as and for a trade mark - Aston v Harlee Manufacturing Company [1960] HCA 47 ; (1960) 103 CLR 391 at 399. Thus, if the Trade Mark had not been used prior to the Priority Date in connection with the goods and services specified in the Application, Ms Lomas should be treated as the owner of the Trade Mark. On the other hand, if Winton is able to establish that, as at the Priority Date, it was the owner of the Trade Mark and not Ms Lomas, the opposition based on s 58 would succeed.
Case: Aston v Harlee Manufacturing Co [1960] HCA 47 ; (1960) 103 CLR 391
Outcome: cited
The applicants do not dispute par (a) in [121]. In Shell Co (Aust) Ltd v Rohm and Haas Co [1948] HCA 27 ; (1948) 78 CLR 601 at 625 and 627 Dixon J said: Before the passing of the Trade Marks Registration Act 1875 ... of the United Kingdom property in a trade mark was acquired by user. If a trader had habitually employed a mark in connection with his goods so that to the public it had come to denote or distinguish his goods, he was entitled to legal and equitable remedies to protect him against the use by rival traders of the same or similar marks .... ... ... an application to register a trade mark so far unused must, equally with a trade mark the title to which depends on prior user, be founded on proprietorship. The basis of a claim to proprietorship in a trade mark so far unused has been found in the combined effect of authorship of the mark, the intention to use it upon or in connection with the goods and the applying for registration. See also Aston v Harlee Manufacturing Co [1960] HCA 47 ; (1960) 103 CLR 391 at 398-399 and Shanahan's Australian Law of Trade Marks and Passing Off 3 rd ed (2003) 51-52. 131 Paragraph (k) assumes that ownership is to be tested as at the date of filing an application for registration. YD relied on the dictum of Kitto J in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 that in "applications for registration, the rights of the parties are to be determined as at the date of the application". In Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839 at [37] - [38] , the Full Court said: The basis of any claim to ownership of a trade mark so far unused is to be found in the combined effect of authorship of the mark, the intention to use it upon or in connection with goods or services and applying for registration of the mark - Shell Company of Australia Ltd v Rohm and Haas Company &amp; Anor [1948] HCA 27 ; (1949) 78 CLR 601 at 627 .... Authorship in that sense involves the origination or first adoption of the word as and for a trade mark - Aston v Harlee Manufacturing Company [1960] HCA 47 ; (1960) 103 CLR 391 at 399. Thus, if the Trade Mark had not been used prior to the Priority Date in connection with the goods and services specified in the Application, Ms Lomas should be treated as the owner of the Trade Mark. On the other hand, if Winton is able to establish that, as at the Priority Date, it was the owner of the Trade Mark and not Ms Lomas, the opposition based on s 58 would succeed.
Case: Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592
Outcome: cited
Paragraph (k) assumes that ownership is to be tested as at the date of filing an application for registration. YD relied on the dictum of Kitto J in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 that in "applications for registration, the rights of the parties are to be determined as at the date of the application". In Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839 at [37] - [38] , the Full Court said: The basis of any claim to ownership of a trade mark so far unused is to be found in the combined effect of authorship of the mark, the intention to use it upon or in connection with goods or services and applying for registration of the mark - Shell Company of Australia Ltd v Rohm and Haas Company &amp; Anor [1948] HCA 27 ; (1949) 78 CLR 601 at 627 .... Authorship in that sense involves the origination or first adoption of the word as and for a trade mark - Aston v Harlee Manufacturing Company [1960] HCA 47 ; (1960) 103 CLR 391 at 399. Thus, if the Trade Mark had not been used prior to the Priority Date in connection with the goods and services specified in the Application, Ms Lomas should be treated as the owner of the Trade Mark. On the other hand, if Winton is able to establish that, as at the Priority Date, it was the owner of the Trade Mark and not Ms Lomas, the opposition based on s 58 would succeed. 134 I think I should follow Crazy Ron's . There the date at which the validity of registration was to be tested was squarely raised. The decision on this issue was based on the definition of "applicant" in s 6. The relevant date was not an issue in Lomas . The Full Court did not refer to the definition of "applicant". The question there was who was the owner at the priority date. The parties were not in dispute as to the time at which to test ownership. Nor was the proper date at which the rights of the parties were to be determined an issue in Southern Cross . Further, the Trade Marks Act 1905 contained no definition of "applicant". Kitto J's five propositions were, as his Honour said, taken from Romer J's judgment in In re Jellinek's Application (1946) 63 RPC 59 at 78. That was a decision under the Trade Marks Act 1938 (1 &amp; 2 Geo 6 c 22), which contained no definition of "applicant".
Case: Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839
Outcome: applied
Paragraph (k) assumes that ownership is to be tested as at the date of filing an application for registration. YD relied on the dictum of Kitto J in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 that in "applications for registration, the rights of the parties are to be determined as at the date of the application". In Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839 at [37] - [38] , the Full Court said: The basis of any claim to ownership of a trade mark so far unused is to be found in the combined effect of authorship of the mark, the intention to use it upon or in connection with goods or services and applying for registration of the mark - Shell Company of Australia Ltd v Rohm and Haas Company &amp; Anor [1948] HCA 27 ; (1949) 78 CLR 601 at 627 .... Authorship in that sense involves the origination or first adoption of the word as and for a trade mark - Aston v Harlee Manufacturing Company [1960] HCA 47 ; (1960) 103 CLR 391 at 399. Thus, if the Trade Mark had not been used prior to the Priority Date in connection with the goods and services specified in the Application, Ms Lomas should be treated as the owner of the Trade Mark. On the other hand, if Winton is able to establish that, as at the Priority Date, it was the owner of the Trade Mark and not Ms Lomas, the opposition based on s 58 would succeed. 134 I think I should follow Crazy Ron's . There the date at which the validity of registration was to be tested was squarely raised. The decision on this issue was based on the definition of "applicant" in s 6. The relevant date was not an issue in Lomas . The Full Court did not refer to the definition of "applicant". The question there was who was the owner at the priority date. The parties were not in dispute as to the time at which to test ownership. Nor was the proper date at which the rights of the parties were to be determined an issue in Southern Cross . Further, the Trade Marks Act 1905 contained no definition of "applicant". Kitto J's five propositions were, as his Honour said, taken from Romer J's judgment in In re Jellinek's Application (1946) 63 RPC 59 at 78. That was a decision under the Trade Marks Act 1938 (1 &amp; 2 Geo 6 c 22), which contained no definition of "applicant".
Case: Mobileworld Communications Pty Ltd v Q &amp; Q Global Enterprise (2003) 61 IPR 98
Outcome: cited
Mr Fitzpatrick, for YD, drew my attention to Mobileworld Communications Pty Ltd v Q &amp; Q Global Enterprise (2003) 61 IPR 98. In that case a company within the Crazy John group, Aust P/L, was originally the applicant for registration of a trademark. Before registration the application was amended to substitute a different company within the group as applicant. The respondents argued that Aust P/L was not the owner of the mark, as required by s 27(1)(a), with the result that registration could have been opposed under s 58, and that the Court had power to order rectification of the register by cancelling the registration. Allsop J rejected that contention at [83]: The ground of opposition is s 58 (see s 88(2)(a)). Bearing in mind the definition of applicant in s 6 as meaning the person in whose name the application is for the time being proceeding, the time to judge the satisfaction of s 27(1)(a) is during the application. Aust P/L initially, implicitly, claimed to be the owner, by being identified on the application form as the applicant. Later, this was changed to Crazy John Pty Ltd .... I think on the evidence that Crazy John Pty Ltd was the owner. The respondents seek to hoist the applicants upon a proposition ... that notwithstanding that Aust P/L first applied for the mark, the position should be considered as if Crazy John Pty Ltd was the original applicant. Since Crazy John Pty Ltd did not, as at 17 August 1999, claim to be the owner of the mark, but did so only later, in November, it is said s 27(1)(a) was not satisfied. I do not agree. Crazy John Pty Ltd was a person who, while the application was proceeding, claimed to be the owner and who claimed to be the owner at the time of grant. Aust Pty Ltd before then claimed to be the owner, but withdrew that claim. To make the application fail because of innocent error of the kind displayed in the evidence would impermissibly narrow the power of amendment in Part 6 of the TM Act. Crazy John Pty Ltd claimed to be the owner during the registration process. It was an applicant. Section 27(1)(a) was satisfied. 17 August 1999 was the date of Aust P/L's application for registration. It was in November 1999 that the Trade Marks Office was requested to amend the application to show Crazy John Pty Ltd as applicant.
Case: In re Jellinek's Application (1946) 63 RPC 59
Outcome: cited
I think I should follow Crazy Ron's . There the date at which the validity of registration was to be tested was squarely raised. The decision on this issue was based on the definition of "applicant" in s 6. The relevant date was not an issue in Lomas . The Full Court did not refer to the definition of "applicant". The question there was who was the owner at the priority date. The parties were not in dispute as to the time at which to test ownership. Nor was the proper date at which the rights of the parties were to be determined an issue in Southern Cross . Further, the Trade Marks Act 1905 contained no definition of "applicant". Kitto J's five propositions were, as his Honour said, taken from Romer J's judgment in In re Jellinek's Application (1946) 63 RPC 59 at 78. That was a decision under the Trade Marks Act 1938 (1 &amp; 2 Geo 6 c 22), which contained no definition of "applicant".
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424
Outcome: cited
I am satisfied that leave should be granted to raise the ground. It is based on the reasons for decision of the RRT and on the material before the FMC, does not involve the adducing of any further evidence and does not cause injustice or unfairness to the respondents. Furthermore, in view of the conclusions at which I have arrived, it is clearly in the interests of justice that the leave sought be granted: cf Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 438 [34] - [35] per Allsop J (with whom Drummond and Mansfield JJ agreed). 6 The appellant's claim before the RRT was that she fears persecution if she returns to Turkey because she is on a PKK blacklist because of her husband's activities in the Special Forces against PKK members ('the blacklist claim'). As the RRT accepted that the appellant had a subjective fear of persecution as she claimed, it was bound to determine whether that claim fell within the Convention. One aspect of that determination was whether the subjective fear of persecution held by the appellant by reason of the blacklist claim was well founded. Another aspect was whether the fear of persecution held by the appellant was for reasons of an actual or imputed political opinion or as a member of a particular social group being that she is a person on a PKK blacklist or she is the wife of a person on a PKK blacklist. On a fair reading of the decision of the RRT, the claim considered by it was a different claim, namely whether a fear of persecution held by a member of the armed forces or as a family member of a member of the armed forces was well founded. This is apparent from the way in which the RRT expressed its decision and from the country information upon which it relied.
Case: Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564
Outcome: considered
The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive's ratification of an international treaty); Renton v Bradbury &amp; Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister).
Case: Fisher v Minister for Immigration and Citizenship and Another [2007] FCA 591 ; (2007) 162 FCR 299
Outcome: applied
In considering whether it is 'in the interests of the administration of justice' to grant an extension of time to file an Application for Judicial Review, the Court is guided by the observations of Stone J in Fisher v Minister for Immigration and Citizenship and Another [2007] FCA 591 ; (2007) 162 FCR 299. In such decision at [35] her Honour said: The latter requirement [whether an extension of time is in the interests of the administration of justice] would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success. 23 Although Stone J's observations were made in the context of s 477(2) of the Act, which provides the criteria to be considered by the Federal Magistrates Court in determining whether it should grant an extension of time to file an application, Stone J at [47]-[48] adopted the above considerations in determining whether this Court should grant an extension of time under s 477A(2). The Court also observes that s 477A(2) of the Act is in substantially the same terms as s 477(2). Accordingly, the Court will adopt the above considerations in its determination of whether to grant an extension of time under s 477A(2) of the Act. 24 The Court notes the applicant's explanation that he attempted to file an appeal within the prescribed time but utilised the wrong form. The Court records establish that such claim is incorrect. The applicant attempted to file a Notice of Appeal on 12 September 2008, but the document was returned to him by the Court registry with the advice that the time for filing such appeal had expired and that an extension of time was required. It follows that no appeal was sought to be filed within the prescribed time limit. 25 Since the applicant lacks legal representation the Court is prepared to accept that a lack of understanding led to his failure to comply with the time constraints. Accordingly, the Court finds that the issue of delay is satisfactorily explained.
Case: Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648
Outcome: considered
The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive's ratification of an international treaty); Renton v Bradbury &amp; Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister).
Case: Hong v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1567
Outcome: considered
The applicant also relies upon the decision of Madgwick J in Hong v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1567 at [20] which states inter alia: Section 499(1) [of the Act] does not empower the giving of directions that would turn a discretion, touching "human fate" (to adopt a phrase used by Toohey J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 at 407) into no discretion at all. It follows that there must be a genuine weighing of factors tending to opposite conclusions and no artificial limitation of such factors. 35 In answer to such submission, the Court observes that the Tribunal considered all relevant aspects of the applicant's claims, as well as the requirements of Ministerial Direction No. 21. The Court cannot discern any basis for the submission that the Tribunal was constrained so as to fetter its discretion.
Case: Jeffers v R [1993] HCA 11 ; (1993) 112 ALR 85
Outcome: considered
For these reasons the Court is satisfied that the draft Application for Judicial Review has no prospects of success. The Court observes that the merits of the applicant's application are determinative in the Court's consideration of whether to grant an extension of time: Jeffers v R [1993] HCA 11 ; (1993) 112 ALR 85 at 86. 37 The Court is not satisfied that it is in the interests of the administration of justice to grant an extension of time under s 477A(2) of the Act. Accordingly the Court dismisses the applicant's application with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 4 November 2008 Counsel for the Applicant The Applicant appeared in person. Solicitor for Second Respondent: Clayton Utz Date of Hearing: 17 October 2008 Date of Judgment: 4 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1627.html
Case: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: considered
Firstly, the applicant claims that the Tribunal failed to take into account a relevant consideration, namely the recommendations contained in the Ombudsman's report. However, the Tribunal only failed to take into account a relevant consideration if it was bound to take into account such consideration: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 39 per Mason J. 27 The Court observes that the Ombudsman's report is not a document required to be taken into consideration under Ministerial Direction No. 21, nor under any statutory or other provision. The Court finds that the Tribunal was not required to take the Ombudsman's report into account in making its decision.
Case: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Outcome: considered
The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive's ratification of an international treaty); Renton v Bradbury &amp; Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister).