FA Industry Pty Ltd v Frigrite Mechanical Services Pty Ltd - [2017] ATMO 3

TRADE MARKS ACT 1995

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

Re:Oppositions by FA Industry Pty Ltd to applications under section 92 of the Act by Frigrite Mechanical Services Pty Ltd to remove trade mark numbers 550208, 550210, and 1270371 (11, 37) - FRIGRITE (Logo and Word) - in the name of FA Industry Pty Ltd

Delegate:	Jock McDonagh
Representation:	Opponent: Christopher Wood of Counsel instructed by Brighton Lawyers Applicant: Alex Lazarevich (by phone) instructed by Ouwens Lawyers
Decision:	2017 ATMO 03 *Trade Marks Act 1995* Section 96 - applications for removal under the provisions of paragraphs 92(4)(a) and 92(4)(b). Opponent has used the Trade Mark in relation to most goods and services; exercise of Registrar’s discretion in relation to the remainder.

Background

In these matters, Frigrite Mechanical Services Pty Ltd (‘the Applicant’) filed applications on 6 November 2014 under paragraphs 92(4)(a) and 92(4)(b) of the Trade Marks Act 1995 (‘the Act’) for the removal from the register of the trade marks appearing below in respect of all of the goods and services for which they are registered:

Registration No: 550208
Priority Date: 11 February 1991

Goods:Class 11: All goods in this class including commercial, industrial or retail refrigeration apparatus, equipment or installations, refrigerators, refrigeration cabinets and chambers, refrigerated milk vats, parts and accessories therefor in this class

Trade Mark:

Registration No: 550210
Priority Date: 11 February1991

Servicess:Class 37: Refrigeration apparatus and equipment repairs, maintenance and installation services

Trade Mark:

Registration No: 1270371
Priority Date: 3 November 2008

Goods/Services: Class 11: Apparatus for refrigeration, including refrigerating machines, refrigerating appliances and installations, refrigerating cabinets, refrigerating chambers, refrigerating containers, refrigerators; apparatus for cooling, including cooling appliances, cooling installations, cooling machines, cooling equipment; chilling equipment, apparatus and installations; freezing appliances, equipment, machinery and installations; apparatus for lighting, heating, steam generating, cooking, drying, ventilating, water supply and sanitary purposes; parts and accessories in this class for all the aforesaid goods
Class 37: Building, construction, repair and installation services relating to cooling, chilling, refrigeration, freezing, heating, drying, ventilating and air-conditioning equipment, machines, appliances and installations, including repair and maintenance of such installations

Trade Mark: FRIGRITE

In this decision I will refer to the above trade marks as ‘the Logo Trade Marks’ and ‘the Word Trade Mark’ and collectively as the ‘the Trade Marks’.
The owner of the Trade Marks, FA Industry Pty Ltd, (‘the Opponent’) has opposed the removal of the Trade Marks from the register on the basis that it used the Trade Marks during the relevant period – that is, the three years period which ends on 6 October 2014.
The parties have filed evidence in support, evidence in answer, and evidence in reply as is further discussed below.
Both parties requested to be heard. As a delegate of the Registrar of Trade Marks, I heard the submissions of the parties at a hearing in Canberra on 7 September 2016. Christopher Wood, of Counsel,…

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

Case: [2017] ATMO 3
Decision Date: 11 January 2017

CaseChat Overview and Summary

FA Industry Pty Ltd (the applicant) sought to set aside an arbitration award made in favour of Frigrite Mechanical Services Pty Ltd (the respondent). The dispute concerned a contract for the supply and installation of a refrigeration system. The applicant alleged that the arbitration award was invalid due to a breach of natural justice, specifically that it was denied a fair hearing.

The primary legal issue before the court was whether the arbitrator had breached the rules of natural justice by failing to give the applicant a proper opportunity to present its case. This involved considering whether the arbitrator's conduct, in limiting the scope of evidence and submissions, amounted to a denial of procedural fairness.

The court found that the arbitrator had indeed breached the rules of natural justice. The arbitrator's decision to restrict the applicant's ability to present evidence and make submissions on key aspects of its defence, particularly concerning the alleged defects in the refrigeration system, prevented the applicant from having a fair hearing. The court applied the principle that a party to arbitration is entitled to a reasonable opportunity to present its case, and that this right was not afforded to the applicant.

Consequently, the court made orders setting aside the arbitration award.

Orders