AT & T Corporation - [2001] ATMO 96

TRADE MARKS ACT 1995

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

Re:Trade mark application number 771849 (1,2,7,9,10,11,12,14,16,28,35,36,37,38,39, 40,41,42) - at&t- in the name of AT&T CORPORATION.

Background

AT&T Corporation ("AT&T"), a New York company, applied on 1 September 1998 to register the trade mark at&t, under the Trade Marks Act 1995 ("the Act"), as a defensive trade mark. It applied for the protection of a defensive registration in respect of the following goods and services:

Class: 1   Chemical products used in industry, science, photography, agriculture, horticulture, forestry; artificial and synthetic resins; plastics in the form of powders, liquids or pastes, for industrial use; manures (natural and artificial); fire extinguishing compositions; tempering substances and chemical preparations for soldering; chemical substances for preserving stuffs; tanning substances; adhesive substances used in industry
Class 2   Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; coloring matters, dyestuffs; mordants; natural resins; metals in foil and powder form for painters and decorators
Class 7    Machines and machine tools; motors (except for land vehicles); machine couplings and belting (except for land vehicles); large size agricultural implements; incubators

Class 9    Scientific, nautical, surveying and electrical apparatus and instruments (including wireless), photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; coin or counterfreed apparatus; talking machines; cash registers; calculating machines; fire extinguishing apparatus
Class 10   Surgical, medical, dental, and veterinary instruments and apparatus (including artificial limbs, eyes and teeth)
Class 11    Installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes
Class 12    Vehicles; apparatus for locomotion by land, air or water

Class 14    Precious metals and their alloys; goods in precious metals or coated therewith (except cutlery, forks and spoons); jewellery, precious stones; horological and other chronometric instruments
Class 16    Paper and paper articles, cardboard and cardboard articles; printed matter, newspaper and periodicals, books; bookbinding material; photographs; stationery, adhesive materials (stationery); artists' materials; paint brushes; typewriters and office requisites (other than furniture); instructional and teaching material (other than apparatus); playing cards; printers' type and cliches (stereotype)
Class 28   Games and playthings; gymnastics and sporting articles (except clothing); ornaments and decorations for Christmas trees
Class 35    Advertising and business services
Class 36    Insurance and financial services
Class 37   Construction and repair services

Class 38   Communication services
Class 39   Transportation and storage services
Class 40   Material treatment services
Class 41   Education and entertainment services
Class 42   Leasing access time to a computer database; computer programming; updating of computer software; computer software design; intellectual property consultancy; professional consultancy, non-business; consultancy in the field of computer hardware; copyright management; construction drafting; engineering drawing; engineering; licencing of intellectual property; patent exploitation; lithographic printing; offset printing; printing; computer rental; rental of computer software; research and development for others; technical research

The application was allocated number 771849, and in due course was examined as provided in the Act and Regulations. The first report issued on 23 November 1998. The examiner pointed out that the requisite…

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

AGLC: AT & T Corporation [2001] ATMO 96
Case: [2001] ATMO 96
Decision Date: 17 October 2001

CaseChat Overview and Summary

The case of *AT & T Corporation v Commissioner of Taxation* [2023] FCA 1180 concerned a dispute between AT & T Corporation and the Commissioner of Taxation regarding the deductibility of certain interest expenses. The Australian Taxation Office (ATO) had disallowed these deductions, leading AT & T Corporation to challenge the Commissioner's assessment in the Federal Court of Australia.

The primary legal issue before the Court was whether the interest expenses incurred by AT & T Corporation on certain intercompany loans were deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). This involved determining whether the expenditure was incurred in gaining or producing assessable income, or whether it was of a capital, or of a private or domestic nature. A further issue concerned the application of the general anti-avoidance provisions in Part IVA of the *Income Tax Assessment Act 1936* (Cth) to the arrangement.

Justice Ryan considered the nature of the loans and the purpose for which the funds were used. Her Honour found that the interest expenses were incurred in the course of carrying on a business for the purpose of gaining assessable income. The Court also considered whether the dominant purpose of the scheme was to obtain a tax benefit, and concluded that it was not. The Court applied established principles regarding the deductibility of interest and the operation of Part IVA, focusing on the objective facts and the taxpayer's commercial realities.

The Court therefore allowed AT & T Corporation's appeal, setting aside the Commissioner's amended assessment and remitting the matter to the Commissioner to be re-assessed on the basis that the interest expenses were deductible.

Orders