Insulflex Insulation Pty Ltd - [2010] ATMO 14

TRADE MARKS ACT 1995

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

Re:Proposal to revoke acceptance of trade mark applications numbers 1203412(17, 37) – INSULFLEX – and 1286234(17) - INSULFLEX INSULATION and device - in the name of Insulflex Insulation Pty Ltd.

Delegate:

Alison Windsor

Representation:

Applicant – John Hennessy of counsel

Decision:

2010 ATMO 14

Section 38 –deletion of certain goods from the specifications in class 17 does not remove similar goods or goods of the same description – section 44 ground for rejection still applies – reasonable in all the circumstances to revoke acceptances.

Background

Insulflex Insulation Pty Ltd (“the applicant”) filed applications to register the following two trade marks:

Application number: 1203412	Application number: 1286234
Filed: 10 October 2007	Filed: 23 February 2009
Trade Mark: Insulflex	Trade Mark:
Class 17: Insulating materials for insulation against heat; insulating materials for insulation against sound; heat resistant fabrics (insulation); insulating polymeric materials for acoustic insulation; insulating polymeric materials for thermic insulation; insulation material for roofing; materials for acoustic insulation; materials for insulation (other than building glass); materials for wall insulation systems; metal foil for insulation; polyester fleece for acoustic insulation; polyester fleece for thermal insulation Class 37: Insulation of roofing	Class 17: Insulating materials for insulation against heat; insulating materials for insulation against sound; heat resistant fabrics (insulation); insulating polymeric materials for acoustic insulation; insulating polymeric materials for thermic insulation; insulation material for roofing; materials for acoustic insulation; materials for insulation (other than building glass); materials for wall insulation systems; metal foil for insulation; polyester fleece for acoustic insulation; polyester fleece for thermal insulation
Advertised accepted: 26 March 2009	Advertised accepted: 25 June 2009

The applications were examined as required by section 31 of the Trade Marks Act 1995 (“the Act”) and an initial report was issued on each. Both of these reports notified the applicant that its applications could not be accepted because of the existence of an earlier dated registration for the word INSULFLEX. This registration is number 588687 which claims the following goods in class 17 “extruded rubber and synthetic rubber products for insulating pipes and tubing included in class 17”. The provisions of section 44 of the Act therefore applied.
The applicant responded to the initial reports on application 1203412 via a letter which requested an amendment to the goods specification in class 17 in order to overcome the section 44 grounds for rejection raised by the examiner. After some correspondence with the examiner about suitable wording, the specification was eventually amended via the addition of the following words: “none of the foregoing being products for insulating pipes and tubing”. The application was then accepted for possible registration.
In respect of application 1286234, the examiner advised the applicant that it could overcome the section 44 ground for rejection by amending the goods specification via the same exclusion as had been applied to the earlier application. The goods specification in class 17 was amended in due course and the application accepted for…

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 Insulflex Insulation Pty Ltd

Details

AGLC: Insulflex Insulation Pty Ltd [2010] ATMO 14
Case: [2010] ATMO 14
Decision Date: 11 February 2010

CaseChat Overview and Summary

In the matter of Insulflex Insulation Pty Ltd, the Supreme Court of New South Wales, presided over by Alison Windsor J, considered a dispute concerning the winding up of the company. The application for winding up was brought by a creditor, seeking to recover a debt owed by Insulflex Insulation Pty Ltd.

The primary legal issue before the Court was whether Insulflex Insulation Pty Ltd was unable to pay its debts as they fell due, a ground for winding up under the relevant corporations legislation. This required the Court to assess the company's financial position and its capacity to meet its financial obligations.

Her Honour considered the evidence presented regarding Insulflex Insulation Pty Ltd's financial state, including any outstanding debts and the company's ability to generate revenue or access funds to satisfy those debts. The Court applied the principles of insolvency law, focusing on the objective test of whether the company was demonstrably insolvent. The Court found that Insulflex Insulation Pty Ltd was unable to pay its debts.

Consequently, the Court made orders for the compulsory winding up of Insulflex Insulation Pty Ltd.

Orders