NANYANG BROTHERS TOBACCO CO LTD v. N.V. SUMATRA TOBACCO TRADING CO

NANYANG BROTHERS TOBACCO CO LTD v. N.V. SUMATRA TOBACCO TRADING CO

The Registrar did not err in principle: there was substantial and unjustified delay (over 2.5 years) in making the application for leave to cross-examine; the Work Manual is not legally binding and did not justify the delay; the Registrar properly treated the late application as an indulgence and validly exercised...

Source-derived case information.

Citation
[2019] HKCFI 3115
Parties
Opponent/appellant: NANYANG BROTHERS TOBACCO COMPANY LIMITED; Applicant/respondent: N.V. SUMATRA TOBACCO TRADING COMPANY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 December 2019
Case Number
HCMP723/2018
Procedural Posture
Trade Mark Opposition / Appeal From Registrar's Costs Decision
Outcome
Appeal dismissed; original Costs Decision of the Registrar upheld
Legal Topics
Costs Order, Cross Examination, Leave to Cross Examine, Delay, Registrar Discretion, Bad Faith
Source Language
en
Trade Mark Civil Procedure Costs Costs Order Cross Examination Leave to Cross Examine Delay Registrar Discretion +1 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

NANYANG BROTHERS TOBACCO COMPANY LIMITED

Opponent/appellant

N.V. SUMATRA TOBACCO TRADING COMPANY

Applicant/respondent

Procedural Posture

Trade Mark Opposition / Appeal From Registrar's Costs Decision

Legal Issues

  1. 1 Whether there was undue delay in making the application for leave to cross-examine
  2. 2 Whether the Trade Marks Registry Work Manual justified the timing of the application
  3. 3 Whether it was appropriate to order the Opponent to pay the Applicant's costs for the late application and the subsequent paper hearing

Ratio Decidendi

The Registrar did not err in principle: there was substantial and unjustified delay (over 2.5 years) in making the application for leave to cross-examine; the Work Manual is not legally binding and did not justify the delay; the Registrar properly treated the late application as an indulgence and validly exercised discretion to order the Opponent to pay both the costs of the late application and the contested paper hearing; the appeal is dismissed.

Court Disposition

Appeal dismissed; original Costs Decision of the Registrar upheld

Orders

  • Appeal dismissed
  • Costs of the appeal to the Applicant; costs order nisi to be made absolute 14 days after date of judgment