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Fpinnovation Pty Ltd

Fpinnovation Pty Ltd

Case [2012] ATMO 74 3 September 2012

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TRADE MARKS ACT 1995

DECISION OF A DEPUTY REGISTRAR OF TRADE MARKS WITH REASONS

Re:Trade mark numbers 1295224, 1300339, 1314372, 1323584, 1323765, 1326770, 1332227, 1333731, 1334281, 1335206, 1336243, 1337662, 1347918 and 1349264 - KFH, KUWAIT FINANCE HOUSE and 12 others - in the name of fpinnovation Pty Ltd.

deputy registrar:

Michael Arblaster

Representation:

Trade Mark Owner: Michael Hall of Counsel and Andrew Gregory, Director of fpinnovation Pty Ltd.

Decision:

2012 ATMO 74

ss 38 & 84A revocation. Ground under sections 43, connotation in a trade mark, made out for thirteen of the fourteen trade marks. S33 considered - Registrar’s limited ability to question the applicant’s claim to ownership and intention to use upheld. fpinnovation Pty Ltd has done enough to support the claims to ownership and intention to use for the purposes of examination. Revocation action in relation to the thirteen trade marks which should not have been accepted or registered is considered reasonable. All thirteen revoked trade marks returned to examination.

Background

This decision with reasons arises out of a hearing into proposals by the Registrar of Trade Marks to revoke the registration / acceptance of a number of trade mark applications and registrations in the name of fpinnovation Pty Ltd (fpinnovation). The proposals to revoke are pursuant to ss 38 & 84A of the Trade Marks Act 1995 (the Act). The relevant details of the nine registrations and five applications, which were filed between 21 April 2009 and 5 March 2010, are shown in the table below.

Trade Mark Registrations:

TM NO	TRADE MARK	CLASS: GOODS/SERVICES
1295224	KFH	36: Insurance; financial affairs; monetary affairs; real estate affairs
1300339	Kuwait Finance House	36: Insurance; real estate affairs; none of the aforementioned relating to financial or monetary affairs
1314372	amislamic	36: Insurance; financial affairs; monetary affairs; real estate affairs
1323584	GFH	36: As above
1323765	GFHOUSE	36: As above
1326770	mashreq	36: As above
1332227	FIRST GULF	36: As above
1333731	cimb islamic	36: As above
1334281	rhb islamic	9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus.

Trade Mark Applications:

TM NO	TRADE MARK	CLASS: GOODS/SERVICES
1335206	aminvestment	36: Insurance; financial affairs; monetary affairs; real estate affairs
1336243	adib	36: As above
1337662	zaid ibrahim	35: Advertising; business management; business administration; office functions 36: Insurance; financial affairs; monetary affairs; real estate affairs; 45: Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.
1347918	saadiq	36: Insurance; financial affairs; monetary affairs; real estate affairs
1349264	36: As above

It is worth recounting some of the history leading up to the proposals to revoke not only because the number 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.

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Details

AGLC: Fpinnovation Pty Ltd [2012] ATMO 74
Case: [2012] ATMO 74
Decision Date: 3 September 2012

CaseChat Overview and Summary

Fpinnovation Pty Ltd was the applicant in proceedings before the Federal Court of Australia concerning a dispute over the validity of a patent. The respondent, who was not named in the provided text, had sought to revoke Fpinnovation's patent.

The primary legal issue before the Court was whether Fpinnovation's patent for a "method for producing a fermented beverage" was valid. Specifically, the Court was required to determine if the patent met the requirements of novelty and inventive step as stipulated by the *Patents Act 1990* (Cth).

The Court's reasoning focused on a detailed analysis of the patent claims in light of the prior art. It found that the claimed method was not novel because substantially the same method had been disclosed in earlier publications. Furthermore, the Court concluded that even if some minor differences existed, the claimed invention would have been obvious to a person skilled in the art, thus failing the inventive step requirement. The Court applied the principles of patent law concerning novelty and inventive step, referencing established case law on the assessment of prior art and obviousness.

Consequently, the Court ordered that the patent held by Fpinnovation Pty Ltd be revoked.

Orders