UCP Gen Pharma AG v Mesoblast, Inc (No 2 ) [2012] FCA 500

UCP Gen Pharma AG v Mesoblast, Inc (No 2 ) [2012] FCA 500

The applicant was successful in court due to new evidence that post-dated the hearing before the delegate. The delegate was not wrong in his decision on the evidence before him. Therefore, there was no justification for varying the delegate's costs award in favour of the applicant.

Parties
Applicant: UCP Gen Pharma AG; Respondent: Mesoblast, Inc
Jurisdiction
Australia
Judgment Date
16 May 2012
Procedural Posture
Appeal / Application for Costs Following Successful Appeal From Registrar of Trade Marks
Outcome
The applicant's application for costs with respect to the proceeding before the delegate of the Registrar of Trade Marks is dismissed; moneys paid into court for security, together with accrued interest, to be released to the applicant.
Legal Topics
Costs, Appeal, Trade Marks
Practice and Procedure Intellectual Property Costs Appeal Trade Marks

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Parties

UCP Gen Pharma AG

Applicant

Mesoblast, Inc

Respondent

Procedural Posture

Appeal / Application for Costs Following Successful Appeal From Registrar of Trade Marks

Legal Issues

  1. 1 Whether the applicant should have its costs of the proceeding before the delegate of the Registrar of Trade Marks following successful appeal
  2. 2 Appropriate exercise of discretion in varying a delegate's costs award under section 197 of the Trade Marks Act 1995

Ratio Decidendi

The applicant was successful in court due to new evidence that post-dated the hearing before the delegate. The delegate was not wrong in his decision on the evidence before him. Therefore, there was no justification for varying the delegate's costs award in favour of the applicant.

Court Disposition

The applicant's application for costs with respect to the proceeding before the delegate of the Registrar of Trade Marks is dismissed; moneys paid into court for security, together with accrued interest, to be released to the applicant.

Orders

  • The applicant's application for costs with respect to the proceeding before the delegate of the Registrar of Trade Marks be dismissed.
  • The moneys paid into court by the applicant in compliance with orders made in this proceeding on 1 September 2011, together with any accrued interest, be released to the applicant.