Winton Shire Council v Lomas [2002] FCA 696

Winton Shire Council v Lomas [2002] FCA 696

All services in Class 42 specified in the trade mark application constituted 'the same kind of thing' as services previously provided under 'Waltzing Matilda Country Kitchen' and should be deleted; the offer to settle did not justify indemnity costs as the applicants did not receive more than their offer; applicants, having been successful in the principal aspect of the case, were entitled to their costs of appeal and opposition proceedings.

Jurisdiction
Australia
Judgment Date
31 May 2002
Procedural Posture
Appeal / Post Judgment Orders and Reasons
Outcome
Appeal allowed in part
Legal Topics
['trade Marks' 'costs' 'appeal Procedure']
['intellectual Property'] ['trade Marks' 'costs' 'appeal Procedure']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Post Judgment Orders and Reasons

Legal Issues

  1. 1 ["Whether the services in Class 42 constitute 'the same kind of thing' as services advertised under 'Waltzing Matilda Country Kitchen'" 'Whether indemnity costs are justified in light of an offer to settle' 'Whether the applicants should be deprived of any part of their costs']

Ratio Decidendi

All services in Class 42 specified in the trade mark application constituted 'the same kind of thing' as services previously provided under 'Waltzing Matilda Country Kitchen' and should be deleted; the offer to settle did not justify indemnity costs as the applicants did not receive more than their offer; applicants, having been successful in the principal aspect of the case, were entitled to their costs of appeal and opposition proceedings.

Court Disposition

Appeal allowed in part

Orders

  • ["Registrar's direction affirmed, with amendment of goods specifications for Classes 29 and 30, and deletion of all services in Class 42 from the trade mark application." "Respondent to pay applicants' costs of and incidental to the appeal, including the costs of and incidental to the notice of motion filed on 29...