Fry Consulting Pty Ltd v Sports Warehouse Inc (No 1) [2011] FCA 1417

Fry Consulting Pty Ltd v Sports Warehouse Inc (No 1) [2011] FCA 1417

The proposed amendment would not grant Fry Consulting adequate notice of the precise mark relied upon for s 60 purposes, as neither the amended notice of contention nor written submissions clearly or unambiguously identified the alternative mark. To allow the amendment at this late stage would occasion prejudice,...

Source-derived case information.

Parties
Applicant: Fry Consulting Pty Ltd; Respondent: Sports Warehouse Inc
Jurisdiction
Australia
Judgment Date
07 December 2011
Procedural Posture
Appeal From Registrar of Trade Marks / Interlocutory Application During Trial
Outcome
Application to amend the amended notice of contention refused.
Legal Topics
Amendment of Notice of Contention, Trade Marks Opposition, Notice Requirements, Prejudice From Amendment, Section 60 Trade Marks Act 1995 (cth)
Practice and Procedure Intellectual Property Amendment of Notice of Contention Trade Marks Opposition Notice Requirements Prejudice From Amendment Section 60 Trade Marks Act 1995 (cth)

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Parties

Fry Consulting Pty Ltd

Applicant

Sports Warehouse Inc

Respondent

Procedural Posture

Appeal From Registrar of Trade Marks / Interlocutory Application During Trial

Legal Issues

  1. 1 Whether the amended notice of contention or written submissions sufficiently notified Fry Consulting Pty Ltd of the case it was required to meet
  2. 2 Whether prejudice would be occasioned to the applicant if leave to amend the amended notice of contention was granted

Ratio Decidendi

The proposed amendment would not grant Fry Consulting adequate notice of the precise mark relied upon for s 60 purposes, as neither the amended notice of contention nor written submissions clearly or unambiguously identified the alternative mark. To allow the amendment at this late stage would occasion prejudice, given the applicant lacked a reasonable opportunity to meet the case.

Court Disposition

Application to amend the amended notice of contention refused.

Orders

  • The application to amend the amended notice of contention made orally on 7 December 2011 is refused.