Bayer Pharma Pty Ltd v Farbenfabriken Bayer Aktienge sellschaft [1965] HCA 71

Bayer Pharma Pty Ltd v Farbenfabriken Bayer Aktienge sellschaft [1965] HCA 71

The mark in question, the Leverkusen Bayer Cross, was not inherently adapted to distinguish the appellant's goods and had not, by use in Australia between 1939 and 1949, acquired such distinctiveness as to identify solely the appellant's goods. Instead, it remained primarily indicative of the German Bayer concern. Further, use of the mark by the appellant would likely deceive or confuse the public into believing that its goods were manufactured by or under the auspices of the German Bayer organization. Accordingly, registration was refused under s.16(1) and s.114 of the Trade Marks Act 1905-1948 (Cth).

Jurisdiction
Australia
Procedural Posture
Appeal / Judgment After Full Court Hearing
Outcome
Appeals dismissed. Decision of the Deputy Registrar set aside. Applications for registration refused.
Legal Topics
['trade Marks' 'distinctiveness of Trade Marks' 'passing Off' 'likelihood of Deception']
['intellectual Property'] ['trade Marks' 'distinctiveness of Trade Marks' 'passing Off' 'likelihood of Deception']

Case Brief

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Procedural Posture

Appeal / Judgment After Full Court Hearing

Legal Issues

  1. 1 ["Whether the 'Leverkusen Bayer Cross' mark is inherently adapted to distinguish the appellant's goods and thus registrable under s.16(1) of the Trade Marks Act 1905-1948 (Cth)." 'Whether the mark acquired distinctiveness through use prior to the date of application for registration.' 'Whether the mark is disentitled to registration due to likelihood of deception under s.114 of the Trade Marks Act 1905-1948 (Cth).' 'Whether the notices of opposition filed by the agent were valid as to authority and under the Trading with the Enemy Act 1939-1947 (Cth).']

Ratio Decidendi

The mark in question, the Leverkusen Bayer Cross, was not inherently adapted to distinguish the appellant's goods and had not, by use in Australia between 1939 and 1949, acquired such distinctiveness as to identify solely the appellant's goods. Instead, it remained primarily indicative of the German Bayer concern. Further, use of the mark by the appellant would likely deceive or confuse the public into believing that its goods were manufactured by or under the auspices of the German Bayer organization. Accordingly, registration was refused under s.16(1) and s.114 of the Trade Marks Act 1905-1948 (Cth).

Court Disposition

Appeals dismissed. Decision of the Deputy Registrar set aside. Applications for registration refused.

Orders

  • ['Appeals dismissed with costs, including costs of the Registrar of Trade Marks.' 'Applications numbers 100642 and 100643 for registration of the Bayer mark refused.' "Respondent to pay the appellant's costs of the appeals and the costs of the Registrar of Trade Marks."]