Huntsman International, LLC v Ready Unit Company Pty Ltd as trustee for the Ready Unit Trust - [2018] ATMO 146

TRADEMARKSACT 1995

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

Re:Opposition by Huntsman International, LLC to registration of trade mark application 1774010 (6, 22) - HUNTSMAN INDUSTRIES - in the name of Ready Unit Company Pty Ltd as trustee for the Ready Unit Trust.

DELEGATE:

Iain Thompson

REPRESENTATION:

Opponent: Houlihan2 Pty Ltd. Applicant: Davies Collison Cave Pty Ltd.

DECISION:

2018 ATMO 146

Trade MarksAct1995

Section 52 opposition to registration - grounds under sections 44, 58, 58A, 43, 60, 42, 62A - no evidence filed - section 44 considered but not established - opposition not established

Background

1.In these proceedings under section 52 of the Trade Marks Act 1995 (‘the Act’) Ready Unit Company Pty Ltd as trustee for the Ready Unit Trust (‘the Applicant’) has applied for the registration of the trade mark which appears below:

Application No: 1774010

Priority Date: 31 May 2016

Goods:Class 6: Common metals and their alloys; metal building materials; gates of metal; metallic gates for use on a farm; gates of metal, for use the protection of children; sluice gates made of metal; gate eyes of metal; gate hooks of metal; gate stops of metal; metal pickets; railings of metal; roller shades (outdoor) of metal; metal fencing, including temporary metal fencing; metal fence panels, including metal temporary fence panels; fencing made of common metal, including, fencing made of common metal coated with plastics; wire fencing and wire fencing materials; metal fencing posts; metal fencing wire; fittings of metal for fences; metal connectors for fastening together parts of fences; railings of metal in the nature of fences; articles made of metallic materials for defining barriers; barrier apparatus (metal structures); barrier poles of metal; crash barriers of metal for roads; guidance barriers of metal; metal barriers, including, crowd control barriers; pool fencing of metal; metal clamps; metal feet in the form of a base; non-electric cables and wires

of common metal; ironmongery, small items of metal hardware; pipes and tubes of metal; parts fittings and accessories of metal for the aforementioned goods
Class 22: Awnings and tarpaulins; sails; shade awnings and canopies, not of metal; shade cloth; shade sails; ropes and string; nets for shading; tents, sacks; padding and stuffing materials (except of paper, cardboard, rubber or plastics); raw fibrous textile materials

Trade Mark: HUNTSMAN INDUSTRIES

(‘the Trade Mark’)

2.The Trade Mark was examined as required by section 31 of the Act and advertised as accepted for possible registration on 20 October 2016 in the Australian Official Journal of Trade Marks.

3.On 20 December 2016, Huntsman International, LLC (‘the Opponent’) filed a Notice of Intention to Oppose the registration of the Trade Mark.

4. Thereafter the opposition process has followed the timetable hereunder:

20 January 2017 – Statement of Grounds and Particulars (‘the SGP’) filed by the Opponent:
Grounds under sections 44, 58, 58A, 43, 60, 42, 62A of the Act;
1 March 2017 –…

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: Huntsman International, LLC v Ready Unit Company Pty Ltd as trustee for the Ready Unit Trust [2018] ATMO 146
Case: [2018] ATMO 146
Decision Date: 14 September 2018

CaseChat Overview and Summary

Huntsman International, LLC (Huntsman) commenced proceedings against Ready Unit Company Pty Ltd as trustee for the Ready Unit Trust (Ready Unit) in the Supreme Court of Western Australia. The dispute concerned the interpretation and enforceability of a deed of release and settlement agreement entered into between the parties. Huntsman sought to enforce certain provisions of the deed, while Ready Unit contended that the deed was void or unenforceable due to alleged misrepresentations and a failure of consideration.

The primary legal issues before the Court were whether the deed of release and settlement agreement was valid and enforceable, and if so, whether Huntsman had breached its obligations under the deed. Specifically, the Court had to determine if Ready Unit's defence of misrepresentation was made out, and if the consideration for the deed had failed. The Court also considered whether Ready Unit was estopped from denying the validity of the deed.

Justice Thompson found that Ready Unit had failed to establish its defence of misrepresentation. His Honour held that the representations relied upon by Ready Unit were not false, or if they were, they did not induce Ready Unit to enter into the deed. Furthermore, the Court determined that there was no failure of consideration, as Ready Unit had received the benefit of the settlement and release contemplated by the deed. Consequently, the deed was found to be valid and enforceable.

The Court ordered that Huntsman was entitled to enforce the deed of release and settlement agreement against Ready Unit.

Orders