Lomas v Winton Shire Council [2002] FCAFC 413

Lomas v Winton Shire Council [2002] FCAFC 413

Winton's advertisement did not constitute use or intention to use the trade mark 'Waltzing Matilda' in relation to country kitchen services with sufficient certainty to deprive Ms Lomas of ownership as at the priority date; the opposition failed and no amendment of specification was justified.

Parties
Appellant: Brenda Mauriceen Lomas; First Respondent: Winton Shire Council; Second Respondent: The Waltzing Matilda Centre Ltd
Jurisdiction
Australia
Judgment Date
11 December 2002
Procedural Posture
Appeal From Registrar (trade Mark Opposition) / Full Court Appeal From Single Judge
Outcome
Appeal upheld; leave to appeal granted; appeal from Registrar dismissed
Legal Topics
Trade Marks, Ownership of Trade Mark, Opposition Proceedings, Appeal Procedures
Intellectual Property Administrative Law Trade Marks Ownership of Trade Mark Opposition Proceedings Appeal Procedures

Case Brief

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Parties

Brenda Mauriceen Lomas

Appellant

Winton Shire Council

First Respondent

The Waltzing Matilda Centre Ltd

Second Respondent

Procedural Posture

Appeal From Registrar (trade Mark Opposition) / Full Court Appeal From Single Judge

Legal Issues

  1. 1 What constitutes 'use' or 'intention to use' of a trade mark for purposes of ownership under the Trade Marks Act 1995 (Cth)?
  2. 2 Did Winton Shire Council use the 'Waltzing Matilda' mark in a way that conferred ownership prior to the applicant's priority date?
  3. 3 Was the primary judge correct in finding that prior use by Winton prevented Ms Lomas from being the owner of the trade mark at the priority date?

Ratio Decidendi

Winton's advertisement did not constitute use or intention to use the trade mark 'Waltzing Matilda' in relation to country kitchen services with sufficient certainty to deprive Ms Lomas of ownership as at the priority date; the opposition failed and no amendment of specification was justified.

Court Disposition

Appeal upheld; leave to appeal granted; appeal from Registrar dismissed

Orders

  • The appeal be upheld.
  • The orders of Spender J made on 31 May 2002 be set aside.