Ananda Marga Pracaraka Samgha Ltd v Amurt Inc - [2016] ATMO 72

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Ananda Marga Pracaraka Samgha Ltd to registration of trade mark application 1524272 – AMURT ANANDA MARGA UNIVERSAL RELIEF TEAM with device - in the name of Amurt Inc.

Delegate: Bianca Irgang

Representation: Opponent: Melissa Marcus of Counsel instructed by Watermark Patent and Trade Mark Attorneys
Applicant: Written submissions

Decision: 2016 ATMO 72
Section 52 opposition: sections 44, 42(b) and 60 pressed – s 60 established – registration refused.
Background

Amurt Inc. (‘the applicant’), filed trade mark application number 1524272 on 6 November 2012 in class 35 of the International Classification of Goods and Services. Current details of the application are set out below.
Trade mark:   (the ‘Trade Mark’)
Trade mark application no: 1524272
Filing Date:  6 November 2012
Specification:  Class 35: Association services being the promotion of the interests of members of the association; arranging exhibitions for business purposes; conducting exhibitions for business purposes; sponsorship search; document preparation; presentation of goods on communication media, for retail purposes
Endorsements:  The applicant has advised that the English translation of the Sanskrit words ANANDA MARGA appearing in the trade mark is PATH OF BLISS
Acceptance of the application for possible registration was published in the Australian Official Journal of Trade Marks on 29 May 2014. Subsequently Ananda Marga Pracaraka Samgha Ltd (‘the opponent’) filed a Notice of Intention to Oppose registration followed by its Statement of Grounds and Particulars[1].
[1] which together constitute ‘the Notice’
The applicant then filed its Notice of Intention to Defend. Thereafter the opponent and applicant respectively filed evidence in accordance with the provisions of the Trade Mark Regulations 1995 (‘the Regulations’).
I heard the opposition in Canberra as a delegate of the Registrar of Trade Marks on 4 July 2016. The opponent was represented by Ms Melissa Marcus of Counsel instructed by Watermark Patent and Trade Mark Attorneys. The applicant was not present at the hearing but did provide written submissions for consideration.
Grounds of Opposition
The Notice nominated four grounds of opposition under the Trade Marks Act 1995 (‘the Act’). Only those grounds being under ss 42, 44, and 60 were pursued at the hearing. The onus is upon the opponent to establish one or more of its grounds of opposition. Gyles J has referred to the standard of proof required in these matters in terms of a ‘balance of probabilities’.[2] His findings upon that issue, arrived at after a consideration of the relevant authorities, have been discussed with approval by Sundberg J in Chocolaterie Guylian NV v Registrar of Trade Marks.[3] Should the opponent establish one ground of opposition in relation to all of the applicant’s services, there is no requirement for me to consider the other grounds of opposition.
[2] Pfizer Products Inc v Karam [2006] FCA 1663; (2006) 70 IPR 599
[3] [2009] FCA 891, [22]-[27] (2009) 82 IPR 13. See also; Sports Warehouse Inc v Fry Consulting [2010] FCA…

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.

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Details

Case: [2016] ATMO 72
Decision Date: 15 September 2016

CaseChat Overview and Summary

Ananda Marga Pracaraka Samgha Ltd (the opponent) opposed the registration of a trade mark by Amurt Inc (the applicant). The dispute concerned the opponent's claim to ownership and control over the name "Ananda Marga" in Australia, which the applicant contested. The matter was heard by Bianca Irgang, a Hearing Officer at Trade Marks Hearings.

The primary legal issue before the Hearing Officer was whether the opponent had established a sufficient reputation in Australia under section 60 of the relevant Act to justify opposing the applicant's trade mark application. This involved determining whether the opponent had demonstrated that the name "Ananda Marga" was recognised in Australia in connection with its organisation and activities, and whether the applicant's proposed use of the mark would be likely to deceive or cause confusion.

The Hearing Officer considered evidence from both parties, including declarations from Colm Largey for the opponent and Dieter Dambiec for the applicant. The opponent presented evidence detailing the establishment and global reach of the Ananda Marga organisation, including the formation of its Australian branch, AMURT Ltd., and its subordinate relationship to the opponent. This evidence was supported by correspondence indicating the opponent's investment in and ownership of the "Ananda Marga" trade mark in Australia. The applicant's evidence questioned the validity of these claims and asserted that other entities had used the name "Ananda Marga" independently and prior to the opponent's establishment in Australia, arguing that the opponent lacked control over the name. The Hearing Officer found that the opponent had met the onus of proof regarding its reputation in Australia under section 60.

Accordingly, the Hearing Officer refused to register the applicant's trade mark application and awarded costs against the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence in this matter consists of the following declarations being:Evidence in Support·Declaration of Colm Largey ( ‘Largey 1’) dated 24 December 2014 with Appendix 1 to 10Evidence in Answer·Declaration of Dieter Dambiec dated 23 May 2015 with Annexure DD-01 to DD-19 (the “Dambiec declaration”)Evidence in Reply·Declaration of Colm Largey ( ‘Largey 2’) dated 17 August 2015 with Annexure CL 1 to CL7 In this case I believe it is appropriate to provide a brief summary of the information included in the evidence before me. Largey 1 explains that Ananda Marga is a philosophy and an organization established to promote that philosophy. The philosophy and organization were devised and overseen by the Indian philosopher and social activist Prabhat Ranjan Sarkar during his lifetime. According to Mr Largey, the organization was formed in 1955 and registered in 1964 in India as Ananda Marga Pracaraka Samgha (‘AMPS’) under the West Bengal Societies Act, 1961. By 1990 the organization had over 40 departments which were each responsible for a particular area of service. The Ananda Marga Universal Relief Team (‘AMURT’) is one of these departments and it was established in 1965 in India. The Largey 1 declaration states that AMURT is now a world-wide organization focusing on disaster relief, development and education and that the Australian branch of AMURT, AMURT Ltd., was established in 1986[4] and Largey 2 provides additional information to support this. [4] Appendix 2.1 accompanying Largey 1 declaration. AMURT Ltd. is subordinate to the opponent as is specified in a letter dated 9 June 1999 from the General Secretary of AMPS to the Registrar of Trade Marks in IP Australia as part of the process of registering its Ananda Marga trade mark no. 769828. Further, appendix 2.1 accompanying the Largey 1 declaration contains a letter from Peter Sage, the Coordinator of the global AMURT organization/department of AMPS, in which he attests to AMURT Ltd.’s investment in and ownership of the Ananda Marga trade mark in Australia. I note that the applicant’s evidence which consists of the Dambiec declaration is critical of the above information and questions the validity of the claims made in the letters and in the Largey 1 declaration. Mr Dambiec also points to other entities in Australia using the name Ananda Marga and asserts that these entities were using the expression Anada Marga without any connection to the opponent or to the AMPS and that these entities existed well before the opponent. Mr Dambiec’s main concern appears to be in establishing that anyone can use the name Ananda Marga and that the opponent has never exercised or is capable of exercising any authorizations or control of the name Ananda Marga nor does it have any standing to do so in Mr Dambiec’s opinion. Largey 2 directly addresses the criticisms in the Dambiec declaration and provides additional evidence in its accompanying annexures to support its claims. The history between the opponent and the applicant (or rather the members of the committee of the applicant) is long-running and contentious. There have been a number of court proceedings in India and Australia which have addressed some of the issues between the parties. In particular I note the judgment of the Australian Federal Court in the matter Ananda Marga Pracaraka Samgha Ltd v Tomar (No 6) [2013] FCA 284[5] which supports and confirms much of the information provided by Mr Largey and of which Mr Dambiec was an unsuccessful defendant. Discussion[5] That judgment refers, inter alia, to:Section 60 - Reputation in Australia

Decision

Reasons for decision

Section 55 of the Act provides:55 Decision (1) Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide: (a) to refuse to register the trade mark; or (b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;having regard to the extent (if any) to which any ground on which the application was opposed has been established.Note: Forlimitationssee section 6. I find that the opponent has met the onus upon it, in terms of the ground of opposition under s 60. Accordingly I refuse to register trade mark application no. 1524272.Costs It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the applicant in terms of Schedule 8 of the Regulations.Bianca IrgangHearing OfficerTrade Marks Hearings15 September 2016

Ratio Decidendi

Legal Principle Established

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Delegate:	Bianca Irgang
Representation:	Opponent: Melissa Marcus of Counsel instructed by Watermark Patent and Trade Mark Attorneys Applicant: Written submissions
Decision:	2016 ATMO 72 Section 52 opposition: sections 44, 42(b) and 60 pressed – s 60 established – registration refused.