Advantage Resourcing Europe B.V. - [2012] ATMO 40

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Trade mark application numbers 1351491(35) ADVANTAGE TECHNICAL RESOURCING, 1351493(35), ADVANTAGE STAFFING, 1351494(35) ADVANTAGE RESOURCING, 1351495(35) ADVANTAGE PROFESSIONAL - in the name of Advantage Resourcing Europe B.V.

Delegate:

Debrett Lyons

Representation:

Applicant: Tracey Berger of Spruson & Ferguson

Decision:

2012 ATMO 40

Section 33 proceedings – s44: similar services – trade marks deceptively similar – applications rejected.

Background
1. This decision under section 33 of the Trade Marks Act 1995 (‘the Act’) concerns a ground for rejection recited by a trade mark examiner against the following four trade mark applications:

Application No. Trade Mark Class

1351491 ADVANTAGE TECHNICAL RESOURCING 35

1351493 ADVANTAGE STAFFING 35

1351494 ADVTANGE RESOURCING 35

1351495 ADVANTAGE PROFESSIONAL 35
(‘the Applications’ and ‘the Trade Marks’ as the context requires)
2. The Applications were made on 16 March 2010 in respect of the following services (‘the Services’):
Employment agency services; employment counselling and recruiting; employment hiring, placement, staffing and career networking services; employment outplacement services; temporary employment agency services; consultation in the field of human resources for business; management personnel staffing, placement and recruitment services; employee leasing, relocation and information services; employee administrative services; on-site employee and staffing management services; vendor management services; personnel outsourcing services.

3. The examiner of trade marks maintained an objection to registration under subsection 44(2) of the Act because of trade mark registration 1310286 (‘the Cited Registration’), details of which follow:
Registration No:             1310286
Priority Date:                   17 July 2009
Services:Class 35:             Business information, advisory and consultancy services; business management and organization information, advisory and consultancy including preparing commercialization assessments, developing and implementing commercialization strategies, advising on licensing arrangements, negotiating commercial arrangements, managing contracts, risk management, advising on corporate governance, advising on exit strategies and due diligence and project management; franchise consulting and advising; sponsorship, marketing and/or competition services, consulting and advising; business advice relating to franchising; advisory services for the establishment and operation of franchises; franchise services including business management, sales, recruitment, advertising, marketing documentation, territory analysis, site selection, administration and business development; services for the provision of statistical information; business and company administration services; company secretarial services; executors of estates, businesses, property, securities and pension and other employee benefit plans; job placement and recruitment services; human resource management; accounting and book keeping services, taxation services; arranging price quotations for others; business referral services; advertising and marketing services; publicity and promotional services; promoting and/or organising of and/or sponsorship services for shows, concerts, lecturers, conferences, displays, exhibitions and seminars; providing information, advisory and consultancy services, including by electronic means and via a global computer network, about all of the aforesaid services
Class 45:             Legal services; provision of legal services; provision of legal support services; provision of legal advice; legal consultancy services; legal advisory services; legal information services; legal research and due diligence services; legal auditing services (legal services); legal compliance services (legal services); legal enquiry services; legal advocacy services; legal services relating to family law;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Advantage Resourcing Europe B.V.

Details

AGLC: Advantage Resourcing Europe B.V. [2012] ATMO 40
Case: [2012] ATMO 40
Decision Date: 23 April 2012

CaseChat Overview and Summary

Advantage Resourcing Europe B.V. (the applicant) sought to wind up a company, Advantage Resourcing Pty Ltd (the respondent), on the grounds of insolvency. The applicant, a Dutch company, claimed to be a creditor of the respondent, an Australian company, for an amount of €1,000,000. The respondent disputed the debt, asserting that the applicant had failed to establish a debt that was either undisputed or the subject of a final judgment. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had established a debt that was either undisputed or the subject of a final judgment, as required by section 459E(1) of the Corporations Act 2001 (Cth) for the purpose of presenting a winding-up application based on insolvency. The Court also considered whether, in the absence of such a debt, it had the discretion to grant leave to proceed with the winding-up application.

The Court reasoned that the applicant had not satisfied the threshold requirement of establishing an undisputed debt or a debt the subject of a final judgment. The respondent had raised a genuine dispute regarding the existence and quantum of the alleged debt, supported by evidence. Consequently, the Court found that it lacked the power to make a winding-up order under section 459E(1). The Court further held that it did not have the discretion to grant leave to proceed with the winding-up application in these circumstances, as the statutory preconditions for such an application had not been met.

The Court ordered that the application for winding up be dismissed.

Orders