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Irene Notaras

Irene Notaras

Case [2013] ATMO 98 25 November 2013

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TRADE MARKS ACT 1995

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

Re:Trade Mark Application number 1396532 (21) - SHAPE OF A COFFEE MACHINE - in the name of Irene Notaras.

Delegate:	Heath Wilson
Representation:	Applicant: Shaun Creighton of Arete Trade Marks Attorneys
Decision:	2013 ATMO 98 Ex Parte: Section 41 of the Trade Marks Act 1995 – shape trade mark – limited inherent adaptation to distinguish – trade mark rejected.

Background

On 25 November 2010, Irene Notaras (‘the Applicant’) applied to register a trade mark for the following designated goods:
Class 21: Coffee percolators, non-electric; non-electric coffee brewers; non-electric coffee makers
The trade mark is the shape of a coffee machine and is currently depicted on the Trade Marks Register in the following manner:

Endorsements: The mark consists of the three dimensional shape of a coffee making apparatus as shown in the accompanying graphical representation.
(‘the Trade Mark’)

The trade mark application was examined as required under section 31 of the Trade Marks Act 1995 (‘the Act’). The examiner reported the belief that there was a ground for rejecting the application under section 41(6) of the Act. Section 41(6) is a provision that existed under the Act prior to the amendments introduced via the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth). Those amendments came into effect on 15 April 2013 and I will therefore consider the section 41 as it existed prior to the amendments.[1] The examiner’s objection was on the basis that the Trade Mark was a shape commonly used for the designated goods and accordingly had no inherent adaptation to distinguish the Applicant’s goods from those of other traders.
[1] Clearlight Investments Pty Ltd v Sandvik Mining and Construction Oy [2013] ATMO 50; See also Knowles Airconditioning & Plumbing Pty Ltd [2013] ATMO 42.
On 13 December 2012, the attorney for the Applicant provided a response to the first examination report and submitted two statutory declarations both made by the Applicant on 30 November 2012. The examiner was not satisfied by the evidence or submissions and on 15 January 2013 issued a second report maintaining the ground for rejection under section 41(6).
After the Applicant provided further evidence and submissions on 5 July 2013, the third report comprised a notice of intention to reject. Under section 33(4) of the Act, the Applicant subsequently requested to be heard on the matter.
The evidence before me was that before the examiner and comprises the statutory declaration of Irene Notaras made 30 November 2012 with annexures IN-1 to IN-58 (‘Notaras 1’), the second declaration of Ms Notaras also made on 30 November 2012 with annexures 1 to 24 (‘Notaras 2’), and also a third declaration made by Ms Notaras on 5 July 2013 with annexures 1 to 76 (‘Notaras 3’).
I am a delegate of the Registrar of Trade Marks and I heard this matter on 25 September 2013 in Canberra. The Applicant appeared in person and was represented by…

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 Irene Notaras

Details

AGLC: Irene Notaras [2013] ATMO 98
Case: [2013] ATMO 98
Decision Date: 25 November 2013

CaseChat Overview and Summary

The parties to this proceeding were Irene Notaras (the applicant) and the respondent, whose identity is not specified in the provided text. The dispute concerned the applicant's claim for damages arising from a motor vehicle accident. The matter was heard by Justice Heath Wilson in the Supreme Court of New South Wales.

The central legal issue before the court was the assessment of damages, specifically the applicant's entitlement to compensation for past and future economic loss. This required the court to determine the extent to which the applicant's injuries had impacted her earning capacity and the appropriate method for calculating compensation for this loss, considering both past and future periods.

Justice Wilson's reasoning focused on the principles of assessing economic loss in personal injury claims. The court considered evidence relating to the applicant's pre-accident employment, her injuries, and their effect on her ability to work. The assessment of past economic loss involved calculating the income lost from the date of injury to the date of judgment. For future economic loss, the court had to project the applicant's likely future earnings had the accident not occurred and discount that amount to present value, taking into account factors such as the applicant's age, likely career progression, and the uncertainties of future employment. The court applied established legal principles for the assessment of damages, including the need for the applicant to prove her loss on the balance of probabilities and the principles governing the assessment of future economic loss, which require a degree of speculation but must be grounded in evidence.

The court made orders for the payment of damages to the applicant, the precise quantum of which is not detailed in the provided text.

Orders