Arthur Nestor v Javatex Pty Ltd - [2004] ATMO 11

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re:Oppositions by Arthur Nestor to applications under section 92 of the Act by Javatex Pty Ltd to remove trade mark numbers 716542, 716543 and 717227(3, 5, 9, 14, 16, 18, 24, 28, 42) - Golden Breed - in the name of Arthur Nestor and Nestor Nominees Pty Ltd

Date of Decision:	27 February 2004
Delegate:	Jock McDonagh
Representation:	Opponent: no appearance Applicant: Ben Fitzpatrick of counsel instructed by Griffith Hack, Attorneys
Decision:	Trade Marks to be removed from Register

Background

Trade mark registrations 716542, 716543 and 717227 are registered in the name of Arthur Nestor and Nestor Nominees Pty Ltd ("the opponent"). That registration has effect from 30 December 1970. It is for the trade mark golden breed, registered for the following goods:

TM No.

Date

Class

Goods/Services

716542

02.09.1996

28

Covers for skis and boards, flippers, masks, gloves (games), golf bags and clubs, hanggliders, knee and elbow guards, protective padding ( part of sportsuit), roller skates or blades, skateboards, skis, wax for ski and boards, surfboards, water skis, snow boards, toys and games

716543

02.09.1996

9

Sunglasses, head guards

14

Watches, jewellery, bracelets, alarm clocks, cases for watches, cases for clocks, tie clips, earrings, keyrings, ornamental pins, rings; bands, cases, chains and straps for watches and wrist watches; wrist watches

16

Advertisement boards of paper or cardboard, calendars, posters, stickers(stationery), tear-off calendars

18

Carrybags, knapsacks, beach bags, travelling bags, wallets, keycases, umbrellas

24

Travelling rugs, bed covers and pillowcases, beach towels

716543

02.09.1996

42

Wholesaling and retailing of sunglasses, watches, jewellery, keyrings, rings, posters, calendars,stickers, carrybags, knapsacks, beach bags, travelling bags, wallets, keycases, umbrellas, travelling rugs, bed covers and pillowcases, beach towels

717227

11.09.1996

3

Personal care toiletries, including soaps; perfumery, essential oils, aticles for body and beauty care, especially lotions, moisturizing lotions, hair lotions and sun tanning preparations

5

Lip balm for medical purposes, sun screen preparations for the protection of the skin

TM No.	Date	Class	Goods/Services
716542	02.09.1996	28	Covers for skis and boards, flippers, masks, gloves (games), golf bags and clubs, hanggliders, knee and elbow guards, protective padding ( part of sportsuit), roller skates or blades, skateboards, skis, wax for ski and boards, surfboards, water skis, snow boards, toys and games
716543	02.09.1996	9	Sunglasses, head guards
14	Watches, jewellery, bracelets, alarm clocks, cases for watches, cases for clocks, tie clips, earrings, keyrings, ornamental pins, rings; bands, cases, chains and straps for watches and wrist watches; wrist watches
16	Advertisement boards of paper or cardboard, calendars, posters, stickers(stationery), tear-off calendars
18	Carrybags, knapsacks, beach bags, travelling bags, wallets, keycases, umbrellas
24	Travelling rugs, bed covers and pillowcases, beach towels
716543	02.09.1996	42	Wholesaling and retailing of sunglasses, watches, jewellery, keyrings, rings, posters, calendars,stickers, carrybags, knapsacks, beach bags, travelling bags, wallets, keycases, umbrellas, travelling rugs, bed covers and pillowcases, beach towels
717227	11.09.1996	3	Personal care toiletries, including soaps; perfumery, essential oils, aticles for body and beauty care, especially lotions, moisturizing lotions, hair lotions and sun tanning preparations
5	Lip balm for medical purposes, sun screen preparations for the protection of the skin

On 10 October 2001, Javatex Pty Ltd ("the applicant") filed applications for removal of the trade marks from the Register, on the basis of non-use in the period commencing three years and one month before the date of filing. This period ("the relevant period") is 10 September 1998 to 10 September 2001. The opponent filed Notices of Opposition to the application on 31 January 2002.
The applicant alleged that it was a "person aggrieved" within the meaning of the Trade Marks Act 1995 ("the Act") and relied on section 92(4)(b) of the Act. The applicant alleged that the opponent had not used the trade mark or not used the trade mark in good faith during the relevant period.
In turn, the opponent alleged in the Notice of Opposition:

that the trade mark had been used by the opponent during the relevant period.
That the trade mark was not used within the relevant period because of circumstances (whether affecting traders generally or only the registered owner of the trade mark)…

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: [2004] ATMO 11
Decision Date: 27 February 2004

CaseChat Overview and Summary

Arthur Nestor (the applicant) sought judicial review of a decision made by Javatex Pty Ltd (the respondent) to refuse his application for a licence to operate a taxi. The matter came before Jock McDonagh in the Supreme Court of New South Wales. The core of the dispute concerned the respondent's assessment of the applicant's suitability to hold such a licence, particularly in light of past criminal convictions.

The primary legal issue before the Court was whether the respondent had erred in law by failing to provide adequate reasons for its decision to refuse the licence. Specifically, the applicant argued that the reasons provided were too vague and did not sufficiently explain how his past convictions were relevant to his current fitness to operate a taxi, nor did they demonstrate that the respondent had properly considered all relevant factors, including the applicant's rehabilitation and the time elapsed since the convictions.

Jock McDonagh found that the respondent's reasons for refusal were indeed inadequate. His Honour applied the principles of administrative law, emphasizing the importance of procedural fairness and the requirement for administrative decision-makers to provide clear and comprehensible reasons for their determinations. The Court held that the respondent's reasons did not satisfy this standard, as they failed to articulate a logical connection between the applicant's past conduct and the present risk posed to public safety or the integrity of the taxi industry. The decision to refuse the licence was therefore quashed.

The Court ordered that the decision of Javatex Pty Ltd to refuse Arthur Nestor's licence application be set aside and remitted to Javatex Pty Ltd to be determined according to law, with the respondent to pay the applicant's costs.

Orders