Austin, Nichols & Co Inc v Lodestar Anstalt [2011] FCA 39

Austin, Nichols & Co Inc v Lodestar Anstalt [2011] FCA 39

Applicants have standing as 'persons aggrieved' by virtue of being trade rivals in the same trade; respondent failed to establish obstacles to use causally preventing non-use during relevant period; nevertheless, discretion exercised to retain the WG trade mark on the register due to its reputation and potential for confusion, thus application for removal dismissed.

Parties
First Applicant: Austin, Nichols & Co Inc; Second Applicant: Rare Breed Distilling LLC; Respondent: Lodestar Anstalt
Jurisdiction
Australia
Judgment Date
04 February 2011
Procedural Posture
Appeal From Decision of Delegate of Registrar of Trade Marks / Final Judgment
Outcome
Application dismissed
Legal Topics
Trade Marks, Removal for Non Use, Standing as Person Aggrieved, Discretion to Retain Mark, Obstacles to Use
Intellectual Property Trade Marks Removal for Non Use Standing as Person Aggrieved Discretion to Retain Mark Obstacles to Use

Case Brief

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Parties

Austin, Nichols & Co Inc

First Applicant

Rare Breed Distilling LLC

Second Applicant

Lodestar Anstalt

Respondent

Procedural Posture

Appeal From Decision of Delegate of Registrar of Trade Marks / Final Judgment

Legal Issues

  1. 1 Whether applicants have established standing as a 'person aggrieved' for purposes of s 92 of the Trade Marks Act 1995 (Cth)
  2. 2 Whether respondent established obstacles preventing use of the WG trademark within s 100(3)(c) of the Trade Marks Act
  3. 3 Whether Court should exercise discretion under s 101(3) of the Trade Marks Act to refuse removal of the WG trade mark

Ratio Decidendi

Applicants have standing as 'persons aggrieved' by virtue of being trade rivals in the same trade; respondent failed to establish obstacles to use causally preventing non-use during relevant period; nevertheless, discretion exercised to retain the WG trade mark on the register due to its reputation and potential for confusion, thus application for removal dismissed.

Court Disposition

Application dismissed

Orders

  • The Application be dismissed.
  • Costs be reserved.