Vulcan Hart Corporation v. Vulcan Australia Ltd [1994] FCA 717

Vulcan Hart Corporation v. Vulcan Australia Ltd [1994] FCA 717

The error in the name of the applicant in the s.23 trade mark rectification application was a mere misnomer, not the making of an application by a non-entity; the true party (Hobart Corporation) was always intended; accordingly, the Federal Court is empowered under O 13 r 2(4) of the Federal Court Rules to amend the proceedings to show the correct applicant's name.

Parties
Original Applicant: Vulcan Hart Corporation; Substituted Applicant: Hobart Corporation; Respondent: Vulcan Australia Limited
Jurisdiction
Australia
Judgment Date
07 October 1994
Procedural Posture
Trade Marks Rectification Application / Interlocutory Application to Amend Applicant's Name; Orders as to Security for Costs and Procedural Timetable
Outcome
Application to amend applicant's name granted.
Legal Topics
Rectification of Trademark Register for Non Use, Amendment of Party Names
Intellectual Property Practice and Procedure Rectification of Trademark Register for Non Use Amendment of Party Names

Case Brief

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Parties

Vulcan Hart Corporation

Original Applicant

Hobart Corporation

Substituted Applicant

Vulcan Australia Limited

Respondent

Procedural Posture

Trade Marks Rectification Application / Interlocutory Application to Amend Applicant's Name; Orders as to Security for Costs and Procedural Timetable

Legal Issues

  1. 1 Whether an error in naming the applicant in a Trade Marks Act s.23 application was a mere misnomer
  2. 2 Whether the application was made by a non-entity and should be a nullity
  3. 3 Whether the Federal Court has power to amend the applicant's name under Order 13 r 2(4) of the Federal Court Rules

Ratio Decidendi

The error in the name of the applicant in the s.23 trade mark rectification application was a mere misnomer, not the making of an application by a non-entity; the true party (Hobart Corporation) was always intended; accordingly, the Federal Court is empowered under O 13 r 2(4) of the Federal Court Rules to amend the proceedings to show the correct applicant's name.

Court Disposition

Application to amend applicant's name granted.

Orders

  • The name of the applicant is amended to Hobart Corporation.
  • Applicant to pay respondent's costs of notice of motion of 28 September 1994, and reserved costs of 19 August 1994 and 1 September 1994.