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Aquarian Foundation v Bruce Lowndes

Aquarian Foundation v Bruce Lowndes

Case [2024] ATMO 175 19 September 2024

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TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Aquarian Foundation Inc to registration of trade mark application number 2256155 (classes 41 & 45) – HIGHER SPIRITUALISM (composite) - in the name of Bruce Lowndes

Delegate: Tracey Berger

Representation: Opponent: Jeffrey Lohse
Applicant: Self-represented

Decision: 2024 ATMO 175
Trade Marks Act 1995 (Cth) – opposition under section 52 – ss 42(b), 43, 44, 58, 58A, 60 and 62A nominated – no ground established - trade mark to proceed to registration
Background
1. This is a decision on the opposition under s 52 of the Trade Marks Act 1995 (Cth)[1] to registration of the trade mark which is the subject of the application detailed below in the name of Bruce Lowndes (‘Applicant’):
Trade Mark: (‘Trade Mark’)
Number:   2256155 (‘Application’)
Filing Date:    15 March 2022
Services:         Class 41: Religious education; religious educational services
Class 45: Conducting religious ceremonies
(‘Applicant’s Services’)
[1] Any references to sections or regulations in this decision are references to sections or regulations of the Trade Marks Act 1995 (Cth) (‘Act’) or the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.

Endorsement: Provisions of subsection 44(4) and/or Reg 4.15A(5) applied.
2.     Following the advertisement of acceptance of the Application, the Opponent filed a Notice of Intention to Oppose on 10 May 2023, followed by a Statement of Grounds and Particulars (‘SGP’) on 8 June 2023. The Applicant filed a Notice of Intention to Defend the opposition on 22 August 2023.
3. The parties then proceeded to file their evidence in accordance with the Regulations. The Opponent’s evidence in support was filed on 28 November 2023, followed by the Applicant’s evidence in answer filed on 7 February 2024 and concluding with the Opponent’s evidence in reply on 14 July 2024.
4.     After the evidence stage ended, the parties were given the opportunity to request a hearing. The Applicant requested a decision without a hearing. Although neither party elected to be heard orally or by way of written submissions, the evidence of both parties contained submissions related to the different grounds of opposition. This matter has been allocated to me to decide as a delegate of the Registrar of Trade Marks. I do so based on the aforementioned materials.
Grounds, onus and relevant date
5.     In the SGP, the Opponent particularised grounds of opposition under ss 42(b), 43, 44, 58, 58A, 60 and 62A.
6.     The Opponent bears the onus of establishing at least one of the nominated grounds of opposition.[2] The standard of proof is the ordinary civil standard of the balance of probabilities.[3]
[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).
[3] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
7.     The date at which the rights of the parties are to be determined is 15 March 2022 (‘Relevant Date’) being the filing date of the…

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 Aquarian Foundation v Bruce Lowndes

Details

AGLC: Aquarian Foundation v Bruce Lowndes [2024] ATMO 175
Case: [2024] ATMO 175
Decision Date: 19 September 2024

CaseChat Overview and Summary

The Supreme Court of Queensland, constituted by Tracey Berger J, considered a dispute between the Aquarian Foundation and Bruce Lowndes. The core of the disagreement concerned the interpretation of a deed of trust and the extent of the trustee's powers, specifically in relation to the distribution of trust property. The Foundation sought declarations regarding its rights and the proper construction of the trust instrument.

The primary legal issue before the Court was whether the trustee, Mr. Lowndes, possessed the power to distribute the capital of the trust fund to a beneficiary absolutely, or if such distributions were limited to income only. This question turned on the precise wording of the relevant clauses within the deed of trust and the established principles of trust law governing the interpretation of such documents.

Her Honour examined the deed of trust, paying close attention to the language used to define the trustee's powers and the nature of the beneficiaries' interests. The Court applied principles of contractual interpretation to the deed, seeking to ascertain the settlor's intention from the words used. The Court concluded that the deed conferred upon the trustee a power to distribute both income and capital, and that the trustee was not restricted to distributing income only. The Court found that the trustee had the power to distribute the capital of the trust fund to a beneficiary absolutely.

Orders