FAST FAIR LTD v. MIROGLIO S.p.A.

FAST FAIR LTD v. MIROGLIO S.p.A.

The acting Registrar correctly applied the Trade Marks Ordinance: unchallenged evidence established honest concurrent use by Miroglio from 1992 and therefore the second application was not an abuse of process; section 21 was inapplicable because only one application was before the Registrar; section 12(1) opposition was not pursued for lack of evidence; consequently the motion/appeal was dismissed with costs to the respondent.

Citation
FAST FAIR LTD v. MIROGLIO S.p.A.
Parties
Appellant (opponent): FAST FAIR LIMITED; Respondent (applicant): MIROGLIO S.p.A.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 April 2007
Case Number
HCMP124/2007
Procedural Posture
Appeal Against Registrar Decision (trade Marks Ordinance) / Post Hearing Judgment
Outcome
motion dismissed; appeal dismissed; costs awarded to respondent Miroglio S.p.A.
Legal Topics
Honest Concurrent Use, Abuse of Process, Burden of Proof, Registration Procedure, Section 21, Section 22, Section 12(1)
Source Language
EN
Trade Mark Law Intellectual Property Administrative Law Honest Concurrent Use Abuse of Process Burden of Proof Registration Procedure Section 21 +2 more

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Parties

FAST FAIR LIMITED

Appellant (opponent)

MIROGLIO S.p.A.

Respondent (applicant)

Procedural Posture

Appeal Against Registrar Decision (trade Marks Ordinance) / Post Hearing Judgment

Legal Issues

  1. 1 Whether the acting Registrar misapplied the burden of proof under section 22 TMO
  2. 2 Whether the second trade mark application by Miroglio amounted to an abuse of process
  3. 3 Whether sections 21 and 22 of the TMO were correctly understood and applied

Ratio Decidendi

The acting Registrar correctly applied the Trade Marks Ordinance: unchallenged evidence established honest concurrent use by Miroglio from 1992 and therefore the second application was not an abuse of process; section 21 was inapplicable because only one application was before the Registrar; section 12(1) opposition was not pursued for lack of evidence; consequently the motion/appeal was dismissed with costs to the respondent.

Court Disposition

motion dismissed; appeal dismissed; costs awarded to respondent Miroglio S.p.A.

Orders

  • motion dismissed
  • costs to respondent Miroglio S.p.A.