Australian Olympic Committee Inc v Calder

FEDERAL COURT OF AUSTRALIA

Australian Olympic Committee Inc v Calder [2000] FCA 943

AUSTRALIAN OLYMPIC COMMITTEE INC v  ALAN ARCHIBALD CALDER
N 603 of 2000

SACKVILLE J
12 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 603 OF 2000

BETWEEN:	AUSTRALIAN OLYMPIC COMMITTEE INC APPLICANT
AND:	ALAN ARCHIBALD CALDER RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	12 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The time for lodging of an appeal from the decision of the delegate of the Registrar of Trade Marks, in relation to Trade Marks application 775469(39) filed in the name of Alan Archibald Calder, be extended until 4 pm on 14 July 2000.

2.   The solicitors for the applicant pay the respondent’s costs of the motion, as taxed or agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 603 OF 2000

BETWEEN:	AUSTRALIAN OLYMPIC COMMITTEE INC APPLICANT
AND:	ALAN ARCHIBALD CALDER RESPONDENT

JUDGE:	SACKVILLE J
DATE:	12 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Application

1. This is an application by the Australian Olympic Committee Inc (“AOC”), made pursuant to Federal Court Rules (“FCR”) O 58, r 4(3), to extend the time for the filing of a notice of appeal from a decision of a delegate of the Registrar of Trade Marks given on 14 April 2000.  By that decision, the Registrar’s delegate directed that an application by Alan Archibald Calder (the respondent to the application in this Court) to register a trade mark in respect of travel arrangements and tours in class 39 of Schedule 1 to the Trade Marks  Regulations, proceed to registration.  Mr Calder’s application had been opposed by the AOC on the ground that the mark was deceptively similar to the Olympic symbol, an outline of which is set out in the Schedule to the Olympic Insignia Protection Act 1987 (Cth). By s 5(1) of that Act the AOC is taken to be the owner of the copyright in the Olympic symbol.

2. FCR O 58 provides for an appeal from a decision of the Registrar of Trade Marks.  Any such appeal must be instituted within twenty-one days after the date of the decision appealed from or within such further time as the Court, on application, fixes: O 58 r 4(2).  FCR O 58 r 4(3) provides as follows:

   “Application may be made to the Court to extend the time for filing, by notice of motion:

   (a)made at any time – unless a law of the Commonwealth provides otherwise; and

   (b)supported by affidavit showing special circumstances.”

   No Commonwealth law “provides otherwise” for the purposes of FCR O 58 r 4(3).

   The Course of Events

3. The AOC’s solicitors, Browne & Co, were notified of the delegate’s decision by a letter dated 14 April 2000 which, for some reason, was not received by them until 19 April 2000.  The…