Commitee Marc Chagall v Elite Wine and Spirits

TRADE MARKS ACT 1995

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

Re:      Opposition by Marc Chagall Committee to registration of trade mark application 951072(33) – Marc Chagall – filed in the name of Elite Wine and Spirits.

Delegate:	Iain Thompson
Representation:	Opponent: Julia Baird of Counsel instructed by Peter Maxwell & Associates Applicant: Unrepresented and did not appear or file written submissions
Decision:	29 ATMO 2007 Section 52 Opposition: Grounds under section 43 established – registration refused. Cost ordered against applicant.

Background

1.      Elite Wine and Spirits, (‘the applicant’), of Miami, Florida, has applied to register the following trade mark:

Reg No:  951072
Priority Date:             21 April 2003

Goods/Services:         Class: 33 Alcoholic beverages, namely vodka and gin

Trade Mark:               Marc Chagall

2.      Marc Chagall Committee (whose full name is Association pour La Defense et la Promotion de L’oevre de Marc Chagall) (‘the opponent’), of Paris, France, filed Notice of Opposition on 7 November 2003 citing grounds of opposition under the Trade Marks Act 1995, (‘the Act’).

3.      The opponent served and filed evidence in support of the opposition and further evidence.  The applicant did not file and serve evidence in answer.

4.  As a delegate of the Registrar of Trade Marks, I heard the matter in Sydney on 14 February 2007.  Julia Baird of Counsel instructed by Maxwell and Associates represented the opponent.  The applicant was not represented and did not appear or file written submissions.

5.  The opponent’s argument went in chief to sections 42 and 43 of the Act, with additional submissions couched in terms of section 60.  For the sake of convenience and clarity, I will decide this matter in terms of section 43.

Evidence

6.  The Opponent's evidence in support (including further evidence served with leave) comprises the following declarations:

(a)     Leonard Mancini dated 21 April 2005 with Exhibits LM-1 to LM-10 (solicitor);

(b)     Meret Mayer Graber dated 8 April 2005 with Exhibits MG-1 to MG 28 (grandchild of the artist Marc Chagall, and member (Vice President)  of the Opponent);

(c)     Pascale Lambert dated 19 May 2005 (French attorney);

(d)    Rebecca Jane Baldwin dated 1 September 2006 with Exhibit RJB-1 (investigator);

persons in the alcohol trade, aware of the artist Marc Chagall:

(e)     Simon Robinson dated 25 August 2006

(f)     Julian Clulow dated 26 August 2006;

(g)     John Patrick O'Shea dated 1 September 2006;

(h)     Patrick Dylan Ryan dated 4 September 2006;

(i)     Holly Marsh dated 11 September 2006;

(j)     Andrew Peter Sinclair Marsh dated 11 September 2006;

(k)     Arran Russell dated 12 September 2006.

members of the general public, aware of Marc Chagall:

(l)     Peter Brook dated 25 August 2006;

(m)    Charles Croxon Poolman dated 25 August 2006;

(n)     Scott Stacy dated 25 August 2006;

(o)     Andrew Keys dated 25 August 2006;

members of the general public, not aware of Marc Chagall:

(p)     Blair Massey Warren dated 25 August 2006;

(q)     Patricia Ford dated 25 August 2006;

(r)     Jason Roach dated 25 August 2006;

(s)     Richard Anthony Davey…