Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd

The case of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd involved a dispute over the ownership and use of certain trade marks registered in the names of the appellants. The respondents challenged the appellants' ownership of these marks under the Trade Marks Act 1995 (Cth). The primary issues before the court were whether the appellants were the proprietors by authorship and first use of the trade marks in question, and whether certain prior uses of the marks constituted sufficient evidence of proprietorship. The court also had to determine if particular services could be considered "true equivalents" or "of the same kind" as those for which the marks were registered.

The court examined the evidence provided by the appellants regarding their use of domain names and websites to promote sales of apartments under the trade marks "Harbour Lights" and "Cairns Harbour Lights". The primary judge found that while these uses were in connection with commercial real estate agency services, they did not establish ownership by prior use due to issues of substantial identity between the marks used and those in suit. The court noted that certain uses, such as an advertisement in The Financial Review and a fact sheet, were not substantially identical to the trade marks in question and therefore could not be relied upon as evidence of prior use. The court also considered whether the prior uses were in relation to all or some of the Class 36 and Class 43 services for which the marks were registered.

The court concluded that the appellants had not demonstrated that they were the proprietors by authorship and first use of the trade marks in suit. The court found that the evidence provided was insufficient to establish ownership due to the lack of substantial identity between the marks used and those in suit. The court also noted that the services in question were not sufficiently similar to constitute "true equivalents" or "of the same kind" as those for which the marks were registered.

The final orders of the court directed the appellants to submit a final form of orders within 21 days and required both parties to file written submissions regarding the disposition of costs, limited to five pages.