AMI Australia Holdings Pty Ltd ACN 095 238 645 v Bade Medical Institute (Aust.) Pty Limited

[2009] FCA 470

FEDERAL COURT OF AUSTRALIA

AMI Australia Holdings Pty Ltd ACN 095 238 645 v Bade Medical Institute (Aust.) Pty Limited [2009] FCA 470

AMI AUSTRALIA HOLDINGS PTY LTD ACN 095 238 645 v BADE MEDICAL INSTITUTE (AUST.) PTY LIMITED and ANOR

NSD 67 of 2009

EMMETT J

1 MAY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 67 of 2009

BETWEEN:

AMI AUSTRALIA HOLDINGS PTY LTD ACN 095 238 645
Applicant

AND:

BADE MEDICAL INSTITUTE (AUST.) PTY LIMITED
First Respondent

REGISTRAR OF TRADE MARKS
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	1 MAY 2009
WHERE MADE:	SYDNEY

THE COURT NOTES THAT:

1.The Registrar of Trade Marks appears in this proceeding pursuant to Order 58 rule 3 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.The Appeal be allowed.

2.Registration of Australian Trade Mark Application No 1143220 be refused.

3.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 67 of 2009

BETWEEN:

AMI AUSTRALIA HOLDINGS PTY LTD ACN 095 238 645
Applicant

AND:

BADE MEDICAL INSTITUTE (AUST.) PTY LIMITED
First Respondent

REGISTRAR OF TRADE MARKS
Second Respondent

JUDGE:

EMMETT J

DATE:

1 MAY 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. This proceeding is an appeal from a decision of the Registrar of Trademarks (the Registrar) that trademark application 1143220 be accepted and a trademark be granted.  The application for registration of the trademark was opposed by the present applicant, AMI Australia Holdings Pty Ltd (AMI).  AMI appeals from the decision of the Registrar.  The applicant for the trademark, the respondent in this proceeding, Bade Medical Institute (Aust) Pty Limited (Bade Medical Institute), has now been deregistered pursuant to its own request to the Australian Securities and Investments Commission (the Commission). 

2. There is another proceeding in the Court involving the same parties, namely, proceeding NSD 2448 of 2007.  That proceeding is part heard.  AMI is the applicant in that proceeding.  Bade Medical Institute is named as a respondent as are former directors of that company.  Undertakings have been given in that proceeding that the mark will in fact not be used. 

3. The Commission has indicated that it does not wish to be heard in relation to the appeal. The Registrar has appeared and has indicated that there is no opposition to the making of orders that the appeal be allowed.  In all of the circumstances I propose to accede to the request by AMI to make orders disposing of the proceeding summarily.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       8 May 2009

Solicitor for the Applicant:	Bruce Stewart Dimarco
Solicitor for the Registrar of Trade Marks:	Australian Government Solicitor

Date of Hearing:	1 May 2009
Date of Judgment:	1 May 2009