Jonglea Pty Ltd v Pharaoh Partners Pty Ltd - [2015] ATMO 16

TRADE MARKS ACT 1995

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

Re:Opposition by Jonglea Pty Ltd to registration of trade mark application 1453654(14) - CRISTIANA and UNICORN DEVICES - filed in the name of Pharaoh Partners Pty Ltd.

Delegate:

Claudia Murray

Representation:

Opponent: Ms Beth Oliak of Counsel, instructed by Gregory J Goold, Solicitors.

Applicant: Not represented at hearing, no written submissions.

Decision:

2015 ATMO 16

Section 52 opposition – section 58A ground pressed – opponent’s earlier use of deceptively similar trade mark established – opposition successful - registration refused.

Background

Trade mark application number 1453654 was filed by Pharaoh Partners Pty Ltd, (‘the applicant’) on 13 October 2011, for the trade mark:

The application covers the following goods in class 14 of the Nice Classification of Goods and Services:
Articles of imitation jewellery; articles of jewellery; artificial jewellery; beads for making jewellery; boxes for jewellery; brooches (jewellery); cases adapted to contain items of jewellery; chains (jewellery); charms (jewellery); collets being parts of jewellery; containers especially adapted for presentation and display of jewellery or watches; costume jewellery; custom jewellery; decorative articles (trinkets or jewellery) for personal use; decorative brooches (jewellery); decorative pins (jewellery); dress ornaments in the nature of jewellery; ear ornaments in the nature of jewellery; fake jewellery; fashion jewellery; gold jewellery; hair ornaments of precious metal (jewellery); imitation jewellery; imitation jewellery ornaments; items of jewellery; ivory (jewellery); jewellery; jewellery articles; jewellery boxes; jewellery cases (caskets); jewellery cases made of paper coated wood; jewellery chain; jewellery chain of precious metal for anklets; jewellery chain of precious metal for bracelets; jewellery chain of precious metal for necklaces; jewellery coated with precious metal alloys; jewellery coated with precious metals; jewellery containing gold; jewellery fashioned from bronze; jewellery fashioned from non-precious metals; jewellery fashioned of cultured pearls; jewellery fashioned of precious metals; jewellery fashioned of semi-precious stones; jewellery for personal adornment; jewellery for personal wear; jewellery in non-precious metals; jewellery in precious metals; jewellery in semi-precious metals; jewellery in the form of beads; jewellery incorporating diamonds; jewellery incorporating pearls; jewellery incorporating precious stones; jewellery items; jewellery made from gold; jewellery made from silver; jewellery made of bronze; jewellery made of crystal; jewellery made of crystal coated with precious metals; jewellery made of glass; jewellery made of non-precious metal; jewellery made of plated precious metals; jewellery made of precious metals; jewellery made of precious stones; jewellery made of semi-precious materials; jewellery of yellow amber; jewellery ornaments; jewellery plated with precious metals; jewellery products; jewellery rope chain for anklets; jewellery rope chain for bracelets; jewellery rope chain for necklaces; jewellery stones; medallions (jewellery); necklaces (jewellery); ornaments (jewellery); pearls (jewellery); pendants (jewellery); personal jewellery; pewter jewellery; pins (jewellery); pins being jewellery; precious jewellery; ring bands (jewellery); rings (jewellery); semi-finished articles of precious metals for use in the manufacture of jewellery; semi-finished articles of precious stones for use in the manufacture of jewellery; sterling silver jewellery; synthetic stones (jewellery); threads of precious metal (jewellery); trinkets (jewellery); wire of precious metal…

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

Case: [2015] ATMO 16
Decision Date: 12 February 2015

CaseChat Overview and Summary

Jonglea Pty Ltd (the plaintiff) and Pharaoh Partners Pty Ltd (the defendant) were parties to a dispute concerning a contract for the sale of land. The plaintiff sought to terminate the contract and recover its deposit, alleging that the defendant had breached a condition precedent. The matter came before Justice Murray of the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendant had breached a condition precedent to the contract, specifically a requirement to obtain a development approval by a certain date. The plaintiff contended that the defendant's failure to secure this approval constituted a repudiatory breach, entitling the plaintiff to terminate the agreement and reclaim its deposit. The court was therefore required to interpret the terms of the contract and assess whether the defendant's actions or omissions amounted to a breach of the stipulated condition.

Justice Murray reasoned that the condition precedent required the defendant to take all reasonable steps to obtain the development approval. The evidence presented indicated that the defendant had not diligently pursued the approval process, particularly in relation to addressing concerns raised by the local council. The court found that the defendant's lack of proactive engagement and failure to provide necessary information constituted a breach of its obligation to use reasonable endeavours to satisfy the condition. Consequently, the defendant’s failure to obtain the approval by the due date was a breach of contract.

The court ordered that the plaintiff was entitled to terminate the contract and recover the deposit paid.

Orders