Seven Up Company v OT Limited [1947] HCA 59

Seven Up Company v OT Limited [1947] HCA 59

Because '7Up' had never been used or become associated in Australia prior to the application to register '8 UP', there is no legal objection to the registration by O.T. Ltd. of the mark '8 UP', in the absence of fraud. Knowledge and motive by respondent director regarding the foreign mark is irrelevant under Australian law. The appeal is therefore dismissed.

Parties
Appellant/applicant: The Seven Up Company; Respondent: O.T. Limited; Respondent: Registrar of Trade Marks
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal to Full Court From Williams J. Decision
Outcome
appeal dismissed
Legal Topics
Trade Marks, Rectification of Register, Non User Due to War, Foreign Mark, Deception, Registration Motives
Intellectual Property Trade Marks Rectification of Register Non User Due to War Foreign Mark Deception Registration Motives

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 4 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

The Seven Up Company

Appellant/applicant

O.T. Limited

Respondent

Registrar of Trade Marks

Respondent

Procedural Posture

Appeal / Appeal to Full Court From Williams J. Decision

Legal Issues

  1. 1 Whether the registration of the trade mark '8 UP' was wrongly made under the Trade Marks Act 1905-1936
  2. 2 Whether knowledge of a similar foreign trade mark and registration in a foreign country is relevant to Australian registration
  3. 3 Whether absence of user in Australia disentitles foreign mark holder from rectification of register

Ratio Decidendi

Because '7Up' had never been used or become associated in Australia prior to the application to register '8 UP', there is no legal objection to the registration by O.T. Ltd. of the mark '8 UP', in the absence of fraud. Knowledge and motive by respondent director regarding the foreign mark is irrelevant under Australian law. The appeal is therefore dismissed.

Court Disposition

appeal dismissed

Orders

  • Appellant to pay costs of the respondents and Registrar of Trade Marks, including reserved costs