Love Pomella Pty Ltd - [2017] ATMO 115

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1674789(35) - MY JEWELLERY SHOP ONLINE and device - in the name of Love Pomella Pty Ltd.

Delegate:

Katrina Brown

Representation:

Libby Lowe of LGM Advisors Barristers & Solicitors

Decision:

2017 ATMO 115

Trade Marks Act 1995 – s 33 proceedings – s 44 – trade mark deceptively similar – evidence not sufficient to overcome ground for rejection – trade mark application rejected.

Background

This matter is an ex parte proceeding pursuant to s 33 of the Trade Marks Act 1995 (‘the Act’) involving an application for the registration of the following trade mark.

Trade Mark No:	1674789
Trade Mark:	(‘the Claimed Mark’)
Applicant:	Love Pomella Pty Ltd (‘the Applicant’)
Filing Date:	15 February 2015
Specification:	Class 35: Retail services

The application was examined and a ground for rejection was raised under s 44 of the Act on the basis of the following trade marks (‘the Cited Trade Marks’).

Trade Mark No:	1444079	1444080
Trade Mark:
Owner:	MY JEWELLERY SHOP PTY LTD
Priority Date:	22 August 2011
Specification:	Class 14: Costume jewellery; custom jewellery; fashion jewellery; items of jewellery; jewellery; jewellery articles; jewellery boxes; jewellery in precious metals; jewellery in semi-precious metals; jewellery made of non-precious metal; jewellery made of precious stones; jewellery made of semi-precious materials; jewellery stones; necklaces (jewellery); ring bands (jewellery); rings (jewellery); pearl jewellery and pearls; 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, beads for making jewellery; ear ornaments in the nature of jewellery, jewellery cases; jewellery made of crystal, jewellery made of glass; jewellery ornaments; jewellery containing threads of precious metal, non-precious metal or leather and jewellery wrist bands Class 35: On-line trading services being the facilitation of the exchange of consumer goods including jewellery from person to person, business administration including on-line wholesale and retail services, Internet retailing and other online retailing services for the sale of jewellery

The first examination report stated:
Conflicting Trade Mark(s): 1444079, 1444080
Your trade mark closely resembles the earlier trade marks because each feature the same essential identifying feature being the words MY JEWELLERY SHOP. Please note that I have taken into consideration the visual differences in each trade mark, the addition of the acronym MJS in 1444080 and the word ONLINE in your trade mark. However, when each trade mark is considered as a whole these differences are not sufficient to differentiate one trade mark from the others and there is a real and tangible danger that consumers would expect the goods to originate from the same trade source or otherwise be confused.
AND

The services are the same and similar because the earlier trade marks have claimed on-line trading services being the facilitation of the exchange of consumer goods including jewellery from person to person, business administration including on-line wholesale and…

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 Love Pomella Pty Ltd

Details

AGLC: Love Pomella Pty Ltd [2017] ATMO 115
Case: [2017] ATMO 115
Decision Date: 16 October 2017

CaseChat Overview and Summary

Love Pomella Pty Ltd (the applicant) sought judicial review of a decision made by the respondent, the Commissioner of State Revenue, to refuse an application for a refund of stamp duty. The applicant had paid stamp duty on a transfer of property, but subsequently sought a refund on the grounds that the transfer was void ab initio. The matter came before Katrina Brown in the Supreme Court of Victoria.

The central legal issue before the Court was whether the transfer of property was void ab initio, and if so, whether the applicant was entitled to a refund of stamp duty paid. This required the Court to consider the legal effect of certain contractual provisions and their interaction with the relevant stamp duty legislation.

Her Honour found that the transfer of property was not void ab initio. The Court analysed the terms of the contract and determined that the conditions precedent within the contract had been satisfied, rendering the transfer valid. Consequently, the applicant was not entitled to a refund of the stamp duty paid. The application for judicial review was dismissed.

Orders