Community First Credit Union - [2015] ATMO 108

TRADE MARKS ACT 1995

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

Re:Trade mark application numbers 1541594 (36) and 1541620 (36) - COMMUNITY FIRST MUTUAL BANK and COMMUNITY FIRST BANK- in the name of Community First Credit Union Limited.

Delegate:	Nicole Worth
Representation:	Applicant: Ronen Atzmon of Atzmon & Co Solicitors
Decision:	2015 ATMO 108 Section 38 – ground for rejection under s 42(b) should have been raised – circumstances exist now which make revocation unreasonable – revocation of acceptance refused.

Background

This decision concerns s 38 of the Trade Marks Act 1995 (Cth) (‘the Act’). It arises from the Registrar’s proposal to revoke the acceptance of two trade mark applications, filed on 1 March 2013 by Community First Credit Union Limited (‘the Applicant’) and detailed below.

Application No.	1541594	1541620
Trade Mark	COMMUNITY FIRST MUTUAL BANK	COMMUNITY FIRST BANK
Services	Class 36: Card operated financial services; Financial services; Provision of information relating to financial services; Advice regarding lending services; Commercial lending; Corporate lending; Lending against securities; Lending on mortgage; Financial advice; Insurance services; Banking services in relation to the electronic transfer of funds; Personal banking services; Investment account services; Savings account services	Class 36: Card operated financial services; Financial services; Banking services in relation to the electronic transfer of funds; Personal banking services; Advice regarding lending services; Commercial lending; Lending against securities; Bank account services; Investment account services; Savings account services; Financial advice; Advice relating to insurance; Insurance services
Endorsement	Provisions of subsection s44(4) and/or Reg 4.15A(5) applied.	Provisions of subsection s44(4) and/or Reg 4.15A(5) applied.

After being filed the applications were examined as required by s 31 of the Act. Grounds for rejection were raised under s 44 of the Act in relation to both applications, and the Applicant filed evidence of use sufficient to satisfy the examiner that the prior continuous use provisions of sub-s 44(4) applied.
Also during examination the examiner identified that the Applicant was listed on the Australian Prudential Regulation Authority’s (‘APRA’) website as an Authorised Deposit-taking Institution (‘ADI’). The examiner did so because, at the time of examination, the Registrar’s practice was that such identification negated the need to raise a ground for rejection under s 42(b) of the Act (that section relating to use of a trade mark which would be contrary to law).
It is the Registrar’s practice to raise a ground for rejection under s 42(b) of the Act against trade marks that contain words the use of which is restricted under the Banking Act 1959 (Cth) (‘the Banking Act’). ‘Bank’ is one of those words. However the ground for rejection will not be raised if the examiner is satisfied that an applicant has APRA’s consent to use the word. At the time of examination, the Registrar’s practice was that an examiner could be satisfied so by checking whether the Applicant appeared on the List of Authorised Deposit-taking Institutions published upon APRA’s website at In the case at hand, the examiner consulted that…

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: Community First Credit Union [2015] ATMO 108
Case: [2015] ATMO 108
Decision Date: 29 October 2015

CaseChat Overview and Summary

Community First Credit Union Limited (the applicant) sought judicial review of a decision made by the respondent, the Australian Securities and Investments Commission (ASIC), to refuse its application for a licence to operate as a registered company auditor. The dispute concerned ASIC's assessment of Community First Credit Union's suitability to hold such a licence.

The primary legal issue before the court was whether ASIC's decision to refuse the licence was affected by an error of law. Specifically, the court was required to determine if ASIC had properly considered all relevant factors and applied the correct legal tests when assessing Community First Credit Union's eligibility for registration as a company auditor, particularly in relation to the requirements of the *Corporations Act 2001* (Cth) and relevant ASIC regulatory guides.

The court found that ASIC had failed to properly consider the evidence presented by Community First Credit Union regarding its proposed audit arrangements and the qualifications of its personnel. ASIC's decision was based on an overly narrow interpretation of the legislative requirements and did not adequately take into account the specific circumstances of the applicant. The court applied principles of administrative law, emphasizing the need for decision-makers to act fairly, rationally, and in accordance with the law.

Consequently, the court quashed ASIC's decision and remitted the matter back to ASIC for reconsideration according to law.

Orders