FEDERAL COURT OF AUSTRALIA
King Par, LLC v Brosnan Golf Pty Ltd [2014] FCA 795
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- Case
- [2014] FCA 795
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether King Par LLC, the applicant, held the ownership rights to the Orlimar trade marks in Australia despite their removal from the Australian Register of Trade Marks due to non-renewal. The court had to examine the chain of title as evidenced by the Foreclosure and Sale Agreement, the Amendment Agreement, and the Asset Purchase Agreement, to determine if these documents effectively transferred the rights to the applicant. Additionally, the court considered whether the failure to renew the trade marks by the seller, King Par Corporation, affected the transfer of these rights to the applicant.
The court concluded that the series of agreements clearly outlined a chain of title that transferred the rights to the Orlimar trade marks to King Par LLC. Despite the non-renewal and removal of these trade marks from the Register, the court found that the applicant had acquired a proprietary interest in the trade marks. This interest was not extinguished by the non-renewal but rather passed to the applicant through the asset purchase agreement. The court held that King Par LLC had a legitimate claim to the Orlimar trade marks in Australia, even though they were not registered at the time of the proceedings.
In light of the findings, the court ruled in favour of King Par LLC, granting it the proprietary rights to the Orlimar trade marks in Australia. The court's decision confirmed that the transfer of these trade marks was valid and effective, regardless of their lapsed status in the Register.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
He was also the CFO of the applicant’s predecessor, an entity called King Par Corporation, from 2005. Mr Coffell says, based on documents on the files of the applicant, that on 15 August 2003, the banker to Orlimar Golf Company took steps under securities it held to sell the assets of those entities with associated goodwill. The buyer was King Par Corporation under an instrument called a Foreclosure and Sale Agreement (the “Agreement”). It acquired, under the Agreement, all of the trade marks of Orlimar Golf Company which included five trade marks in Australia including the Orlimar trade mark No. 765892 and the Orlimar Trimetal trade mark No. 772833. Those marks had been registered in Australia from 26 June 1998 and 10 September 1998 respectively in Class 28 for sporting equipment including golf equipment and golf clubs. On 12 April 2006, an amendment to the Agreement was entered into (the “Amendment Agreement”) so as to give specificity, by way of a schedule, to each of the trade marks and other intellectual property assigned to King Par Corporation under the Foreclosure and Sale Agreement. Exhibit 2 to the Amendment Agreement is a schedule identifying five Australian trade marks including the two registered trade marks in Australia mentioned at [45] of these reasons. On 4 June 2009, an Asset Purchase Agreement was entered into by which KP Acquisition Company LLC acquired the assets of King Par Corporation. On 9 June 2009, KP Acquisition Company LLC changed its name to the name of the present applicant in these proceedings, King Par LLC (otherwise described in these reasons as “King Par”). Recital B of the Asset Purchase Agreement recites that the seller is engaged in the business of designing, manufacturing, importing, distributing and selling golf equipment, bags, balls and accessories sold, using various brand names and registered trade marks owned by the seller “(including … the … “Orlimar” brand nam[e])”, to “mass merchant and other golf speciality store customers located in the United States and internationally”, which, among other related activities, is described as the “Company Business” of the seller. Clause 1.1(e) of the Asset Purchase Agreement taken together with Sch 1.1(e) make plain that the rights assigned to the applicant include the seller’s interest in the name or mark Orlimar and all other non‑registered and registered trade marks and trade names used by the seller in connection with the company business. King Par thus became the proprietor of all of the trade marks of the seller. As earlier mentioned, it is common ground that the Orlimar trade mark in Australia (No. 765892) was not renewed by King Par Corporation, the seller, and was removed from the Register on 29 January 2009. It is also common ground that King Par Corporation also failed to renew the Orlimar Trimetal trade mark which was removed from the Register on 23 April 2009. These sale and transfer instruments, however, identify the chain of title of the applicant to the trade mark Orlimar which was registered in Australia but due to non‑renewal became a non‑registered trade mark in Australia.