Re Trade Mark <Thunderbird< [1974] HCA 51

Re Trade Mark <Thunderbird< [1974] HCA 51

The application for rectification was filed within seven years of registration, and service and hearing beyond seven years did not preclude the application; the mark was not validly registered as there was insufficient evidence of use or distinctiveness in Australia before registration.

Jurisdiction
Australia
Judgment Date
28 November 1974
Procedural Posture
Rectification of Register / Judgment
Outcome
Application allowed; mark expunged from register.
Legal Topics
['trade Marks' 'rectification of Register' 'expunging Mark']
['intellectual Property'] ['trade Marks' 'rectification of Register' 'expunging Mark']

Case Brief

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Procedural Posture

Rectification of Register / Judgment

Legal Issues

  1. 1 ["Whether the entry of the trade mark 'Thunderbird' was wrongly made in the register" 'Whether there was user in Australia of the mark before application for registration' 'Whether the applicant for registration was the author of the mark in Australia' 'Whether an applicant for expunging had used the mark in Australia indicating a connexion between the mark and goods' 'Whether the knowledge acquired by a single importer is sufficient for distinctiveness in Australia' 'Effect of validation of a mark seven years after registration when proceedings commenced within seven years but heard after']

Ratio Decidendi

The application for rectification was filed within seven years of registration, and service and hearing beyond seven years did not preclude the application; the mark was not validly registered as there was insufficient evidence of use or distinctiveness in Australia before registration.

Court Disposition

Application allowed; mark expunged from register.

Orders

  • ["The trade mark 'Thunderbird' be expunged from the register."]