Melhero Pty Ltd & Anor v Club X Pty Ltd & Ors [1997] FCA 119

Melhero Pty Ltd & Anor v Club X Pty Ltd & Ors [1997] FCA 119

The Trade Marks Act 1995 applies to the applicants' claim for rectification of the Register of Trade Marks because the claim was not 'pending' before 1 January 1996 within the meaning of s.250; it was only introduced by amendment after that date, and there is no basis to apply the 1955 Act or to treat the proceedings as 'pending' under the repealed Act.

Parties
First Applicant: Melhero Pty Limited; Second Applicant: Mitchell Products Pty Limited; First Respondent: Club X Pty Limited; Second Respondent: Walter Dell Pty Limited; Third Respondent: Ashwood Way Pty Limited; Fourth Respondent: Shaft Theatres Pty Limited; Fifth Respondent: Silken Hall Pty Limited; Sixth Respondent: Texas Park Pty Limited; First Cross Claimant: Walter Dell Pty Limited; Second Cross Claimant: Ashwood Way Pty Limited; First Cross Respondent: Melhero Pty Limited; Second Cross Respondent: Mitchell Products Pty Limited
Jurisdiction
Australia
Judgment Date
20 January 1997
Procedural Posture
Application and Cross Claim for Rectification of Trade Marks Register and Related Relief / Determination of Whether Trade Marks Act 1955 or Trade Marks Act 1995 Applies to Rectification Claim
Outcome
Provisions of the Trade Marks Act 1995 apply to the rectification claim; costs reserved.
Legal Topics
Rectification of Trade Marks Register, Transitional Provisions, Interpretation of 'pending' Proceedings
Intellectual Property Rectification of Trade Marks Register Transitional Provisions Interpretation of 'pending' Proceedings

Case Brief

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Parties

Melhero Pty Limited

First Applicant

Mitchell Products Pty Limited

Second Applicant

Club X Pty Limited

First Respondent

Walter Dell Pty Limited

Second Respondent

Ashwood Way Pty Limited

Third Respondent

Shaft Theatres Pty Limited

Fourth Respondent

Silken Hall Pty Limited

Fifth Respondent

Texas Park Pty Limited

Sixth Respondent

Walter Dell Pty Limited

First Cross Claimant

Ashwood Way Pty Limited

Second Cross Claimant

Melhero Pty Limited

First Cross Respondent

Mitchell Products Pty Limited

Second Cross Respondent

Procedural Posture

Application and Cross Claim for Rectification of Trade Marks Register and Related Relief / Determination of Whether Trade Marks Act 1955 or Trade Marks Act 1995 Applies to Rectification Claim

Legal Issues

  1. 1 Whether the Trade Marks Act 1955 or the Trade Marks Act 1995 applies to the applicants' claim for rectification of the Register of Trade Marks
  2. 2 Interpretation of 'pending' under s.250 of the 1995 Act in the context of rectification claims commenced or amended around the commencement of the 1995 Act

Ratio Decidendi

The Trade Marks Act 1995 applies to the applicants' claim for rectification of the Register of Trade Marks because the claim was not 'pending' before 1 January 1996 within the meaning of s.250; it was only introduced by amendment after that date, and there is no basis to apply the 1955 Act or to treat the proceedings as 'pending' under the repealed Act.

Court Disposition

Provisions of the Trade Marks Act 1995 apply to the rectification claim; costs reserved.

Orders

  • Declared that the provisions of the Trade Marks Act 1995, and not those of the Trade Marks Act 1955, apply to the applicants' claim for rectification of the Register of Trade Marks.
  • Costs of this question reserved.