L.T. Overseas Limited v Chemico Pty Ltd

This matter came before Michael Kirov, acting as a delegate of the Registrar of Trade Marks, concerning an opposition by L.T. Overseas Limited against the registration of the DEVAAYA trade mark by Chemico Pty Ltd. The dispute centred on Chemico's application to register the DEVAAYA trade mark, which L.T. Overseas opposed on several grounds, including alleged breaches of sections 42(b) and 58 of the relevant Act.

The court was required to determine whether Chemico's application for the DEVAAYA trade mark should be rejected. Specifically, the court had to consider the grounds of opposition based on section 42(b), which mandates rejection if the trade mark's use would be contrary to law, and section 58, which relates to the ownership of a trade mark. The court also considered other grounds under sections 43, 59, 60, and 62(b), but found insufficient evidence to support them.

In its reasoning, the court applied established legal principles regarding trade mark ownership in the context of international trade. Drawing on the High Court's decisions in *Estex Clothing Manufacturers Pty Ltd v Ellis and Goldstein Ltd*, the court held that when an overseas manufacturer's goods bearing their mark are sold into Australia and offered for sale, the use of that mark is considered to be that of the manufacturer. The court found that the use of the DEVAAYA trade mark in Australia prior to Chemico's filing date was use by or on behalf of L.T. Overseas. Consequently, L.T. Overseas was deemed the owner of the mark in Australia for the relevant goods, and the ground of opposition under section 58 was established.

Accordingly, the court found that L.T. Overseas had established its ground of opposition under section 58.