Dunlop Aircraft Tyres Limited v The Goodyear Tire & Rubber Company

Dunlop Aircraft Tyres Limited and others brought proceedings against The Goodyear Tire & Rubber Company and others in the Federal Court of Australia, alleging infringement of registered trade marks, specifically the "Dunlop" word marks and the "Flying D" device marks ("Dunlop/Flying D marks"). These marks are registered in relation to aircraft tyres and related parts, as well as aircraft tyre re-treading services. The defendants argued various defences under the Trade Marks Act 1995 (Cth), including non-use and authorisation by a subsidiary company. The defendants also sought to have the marks removed from the register or rectified, citing issues such as prior use and lack of distinctiveness. Additionally, the defendants challenged the availability of relief for infringement of a trade mark that had been cancelled or rectified.

The court examined the history of the Dunlop and Goodyear companies and the evolution of their trade marks, focusing on the registration and use of the Dunlop/Flying D marks in Australia and the UK. The court analysed the applicability of the defences raised by the defendants under the Trade Marks Act 1995 (Cth). It considered whether the Dunlop/Flying D marks should be removed from the register for non-use and whether the marks should be rectified. The court also evaluated the defendants' arguments regarding the availability of relief for infringement of a trade mark that had been cancelled or rectified.

The Federal Court of Australia found that the defendants had not successfully demonstrated that the Dunlop/Flying D marks should be removed from the register or rectified. The court held that the defendants had not shown that the marks had fallen into disuse or that they lacked distinctiveness. The court also found that the defendants had not established that the use of the marks by a subsidiary company constituted authorised use. Furthermore, the court ruled that the defendants were not entitled to relief for infringement of a trade mark that had been cancelled or rectified. The court dismissed the defendants' appeal and cross-appeal.

The final orders of the court were to dismiss the amended notice of appeal and the notice of cross-appeal, with entry of orders to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.