Food Channel Network Pty Ltd v Television Food Network, G.P

Food Channel Network Pty Ltd, a related entity to Channel, filed an application to register a trade mark with the Registrar of Trade Marks. Channel subsequently assigned the application to register the trade mark to Food Channel. Television Food Network, G.P opposed the application, arguing that Channel was not the owner of the trade mark, and that its use would cause confusion. The delegate of the Registrar rejected Television's opposition and decided to proceed with the registration of the trade mark. Television appealed this decision to the Federal Court, and subsequently abandoned its reliance on one of the grounds of opposition. The primary judge found for Television, holding that Channel was not the owner of the trade mark, that it was not possible to conclude that Channel was the owner of the trade mark, and that the trade mark was deceptively similar to Television's trade marks. Channel now seeks leave to appeal the primary judge's decision.

The issue before the court was whether the primary judge erred in refusing Channel leave to rely on a fourth affidavit, and whether this refusal deprived Channel of a fair trial. The court found that the primary judge did not err in refusing to allow Channel to rely on the fourth affidavit, as it was filed late and did not contain any new evidence. The court also found that, even if the fourth affidavit had been allowed, it would not have affected the outcome of the case, as the evidence presented at trial was sufficient to support the primary judge's decision. The court further found that Channel was not the owner of the trade mark, and that its use would cause confusion.

The court granted Channel leave to appeal the primary judge's decision, but dismissed the application and notice of motion filed on 11 August 2009. The court noted that the appeal was unlikely to succeed, but that a small amount of doubt about the primary judge's decision should suffice given the substantial injustice that Channel would suffer if leave were refused and its substantive rights were finally determined on the basis of the primary judge's decision. The court also noted that the appeal was brought in the alternative to the application and notice of motion, and that the latter should be dismissed if the former was granted.