Fortuity Pty Limited v Ereneos (Renos) Savvides - [2000] ATMO 89

TRADE MARKS ACT 1995

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

Re:Opposition by Fortuity Pty Limited to registration of trade mark application 758184(5, 16) - TRIM FOR LIFE- filed in the name of Ereneos (Renos) Savvides.

Background

This matter arises out of the filing, on 25 March 1998, of an application to register the trade mark TRIM FOR LIFE by Ereneos (Renos) Savvides ('the applicant'). The application seeks registration in respect of the goods:

Class: 5
Food supplements; vitamin and/or mineral supplements including vitamin and/or mineral tablets; dietetic substances
Class: 16
Printed materials; books; booklets; journals; newsletters

After examination, the application was accepted on 22 September 1998 and advertised in the Australian Official Journal of Trade Marks on 8 November 1998.

On 8 April 1999, after seeking and receiving an extension of time in which to do so, Fortuity Pty Limited ('Fortuity') filed notice of opposition to the registration. The grounds of the opposition will emerge sufficiently from my reasons, below.

On 7 July 1999, after seeking and receiving extensions of time in which to do so, Fortuity served its evidence in support of its opposition. And, on 13 December 1999, the applicant served his evidence in answer.

The issue came before me for a hearing on 24 July 2000 in Sydney. The applicant represented himself and Andros Chrysiliou (of Chrysiliou Moore Martin) represented Fortuity. Before giving my reasons, I will discuss the evidence.

The evidence

The evidence in support of the opposition comprises a statutory declaration by Kerry Moore Chrysiliou and one exhibit thereto. The declaration consists, in the main, of reiterations of the West Australian Supreme Court's findings in Fortuity Pty Ltd v Skybase Nominees Pty Ltd as trustee for The Barcza Family Trust and Another: Fortuity Pty Ltd v Barcza (1995) 32 IPR 517. That case is one in copyright and confidential information and involves a Mrs Barcza who left the employ of Weight Watchers (of whom Fortuity is Australian franchisee) and started her own business under the business name TRIM FOR LIFE. After sending out announcements to prospective customers on 29 April 1992 that she was starting the business under the name TRIM FOR LIFE, she ran the first class of her program on 1 May 1992. On 30 January 1995, Skybase Nominees Pty Ltd purchased the goodwill of the Trim For Life business from Mrs Barcza. The declaration states that on 25 November 1996 Skybase Nominees Pty Ltd 'transferred' the TRIM FOR LIFE business to Fortuity. The transfer included the "name TRIM FOR LIFE", the assets and the goodwill of the business.

The declaration continues by stating that Dr Garry Egger assists Fortuity in its business activities and has published a book under the title TRIM FOR LIFE. A copy of the front cover of this book is exhibited to the declaration.

The evidence in answer is a statutory declaration by the applicant. He attests to the use of the words TRIM FOR LIFE since 1990 and the registration of…

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.

Continue reading Fortuity Pty Limited v Ereneos (Renos) Savvides

Details

AGLC: Fortuity Pty Limited v Ereneos (Renos) Savvides [2000] ATMO 89
Case: [2000] ATMO 89
Decision Date: 16 August 2000

CaseChat Overview and Summary

Fortuity Pty Limited (the applicant) sought to set aside a default judgment entered against it in favour of Ereneos (Renos) Savvides (the respondent). The dispute arose from a loan agreement where the applicant alleged it had repaid the loan in full, while the respondent claimed a significant outstanding balance remained. The application to set aside the default judgment was heard in the Supreme Court of Victoria.

The primary legal issue before the Court was whether the applicant had established a meritorious defence to the respondent's claim, which is a prerequisite for setting aside a default judgment. This involved determining whether the applicant's assertion of having repaid the loan in full was capable of being substantiated, and if so, whether it constituted a defence to the respondent's claim for the outstanding amount. The Court also considered whether the applicant had demonstrated a good reason for its failure to file a defence within the prescribed time.

Justice Ian Thompson found that the applicant had failed to demonstrate a meritorious defence. The evidence presented by the applicant regarding the alleged repayment was found to be vague and unsubstantiated, lacking the necessary particularity to raise a triable issue. The Court applied the principles governing applications to set aside default judgments, emphasizing the need for a defence with real prospects of success. Without a meritorious defence, the Court held that it lacked the power to set aside the default judgment.

Consequently, the Court dismissed the applicant's application to set aside the default judgment.

Orders