Hung's (1985) Ltd v D & J Fowler Ltd - [1992] ATMO 58

trade marks act 1955

decision of a delegate of the registrar of trade marks

Re:Opposition by D.& J. FOWLER LIMITED to Trade Mark Application Nos. 479710 and 479711 in the name of HUNG'S (1985) LIMITED

Application numbers 479710 and 479711 were lodged on 15 January 1988 in the name of HUNG'S (1985) LIMITED (the applicant). These applications, for the mark shown below, were advertised in the Official Journal of 10 August 1989 for, respectively, "Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (except salad dressings); spices; ice" in Class 30, and "Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams; eggs, milk and milk products; edible oils and fats; salad dressings; preserves," in Class 29.

On 26 October 1989, notice of opposition to the marks' registration was lodged by D.& J. FOWLER LIMITED (the opponent). The grounds of the opposition were based on sections 28, 33 and 40. The opponent alleged that use of the mark by the applicant would lead to confusion and deception due to the goodwill accrued by the use of the opponent's numerous registrations of LION word and device marks for goods of the same general description, and that the applicant was not the proprietor of the mark.

The opponent lodged part evidence in support on 24 October 1990 and the balance on 9 May 1991. The applicant lodged its evidence in answer on 22 November 1991. The opponent's evidence in reply was then lodged on 19 February 1992.

On 19 May 1992, the opponent requested that a hearing be set down to decide the matter and the cases came before me as the Registrar's delegate in Canberra on 13 August 1992. Representing the opponent were Mr Howard Schulz and Dr Mark Horsburgh of Collison & Co, Adelaide, while appearing for the applicant was Ms Annette Freeman of Spruson & Ferguson, Sydney.

As a means of efficiently dealing with both sides of the argument, I propose to briefly summarise the evidence relied upon by both parties which was lodged prior to the hearing and then the submissions advanced by the attorneys in prosecuting their clients' cases.

Opponent's evidence in support
The first part of this consists of the declaration of Mr Deuter, who is the Chief Executive of the opponent company. He declares that his company is the proprietor of numerous trade marks consisting of the device of a lion and the words LION or LION BRAND, the earliest of which was registered from 2 July 1906. Attached as exhibits are details of the marks, material which describes the history of the opponent and its marks, details of sales and advertising figures in relation to the marks, samples and photographs of the company's advertising material, samples of packaging showing the marks in use and declarations from persons in the trade attesting to use of the opponent's marks.

The balance…

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 Hung's (1985) Ltd v D & J Fowler Ltd

Details

AGLC: Hung's (1985) Ltd v D & J Fowler Ltd [1992] ATMO 58
Case: [1992] ATMO 58
Decision Date: 23 September 1992

CaseChat Overview and Summary

Hung's (1985) Ltd (the appellant) appealed to the Supreme Court of South Australia against a decision of the District Court. The dispute concerned a contract for the sale of goods, specifically a consignment of frozen prawns. The appellant alleged that the prawns supplied by the respondent, D & J Fowler Ltd, were not of merchantable quality and were unfit for their intended purpose, leading to a claim for damages.

The primary legal issues before the Supreme Court were whether the prawns were of merchantable quality and fit for the purpose for which they were sold, and if not, what damages were recoverable by the appellant. The court was required to consider the implications of the implied conditions as to merchantable quality and fitness for purpose under the Sale of Goods Act 1896 (SA), and whether the appellant had accepted the goods despite the alleged defects.

The court found that the evidence did not establish that the prawns were not of merchantable quality or unfit for their intended purpose at the time of sale. It was noted that the prawns were sold as "frozen prawns" and were indeed frozen. Any deterioration in quality was found to have occurred after the sale and delivery, due to the appellant's own handling and storage practices. The court applied the principles that the burden of proof lay with the appellant to demonstrate a breach of the implied conditions, and that the implied conditions relate to the quality and fitness of the goods at the time of sale, not thereafter.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders