Madec v E.F. Gutenkunst Teachers Centre - [2002] ATMO 4

TRADE MARKS ACT 1995

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

Re:Opposition by MADEC to registration of trade mark application 827369(41) - MADEC - filed in the name of E.F. Gutenkunst Teachers Centre.

Background

Trade mark application number 827369 was filed on 6 March 2000, by E.F. Gutenkunst Teachers Centre. The application was in respect of the trade mark MADEC in class 41 of the International (Nice) Classification of Goods and Services, for "providing education (professional development) and training". The E.F. Gutenkunst Teachers Centre is based in Mackay, Queensland and operates the "Mackay and District Education Centre", from the first initials of which their trade mark MADEC is derived.

On 19 September 2000, prior to examination of the subject application, the Trade Marks Office ("the Office") received a letter from Mr Kirk Warren, Chief Executive Officer ("CEO") of a Victorian educational organisation also operating under the name of MADEC. In this case, however, the name is derived from the initials of the "Mildura and District Education Council". Mr Warren's letter was headed "Re: Opposition to Trade Mark Number - 827369". The Official reply to Mr Warren advised, amongst other things, that opposition would not be available to his organisation until the application had been examined and, if found acceptable, advertised as such in the Official Journal of Trade Marks.

For convenience and clarity, from this point I will refer to the opposing parties as they have referred to themselves and each other in their submissions. The trade mark applicant will be referred to as "MADEC Mackay" and the prospective opponent as "MADEC Mildura".

Examination of MADEC Mackay's application proceeded, and its acceptance was advertised in the Official Journal of Trade Marks on 1 February 2001. The three months allowed for filing notice of opposition to registration of the trade mark under the provisions of subsection 52(2) of the Trade Marks Act 1995 ("the Act") and regulation 5.1 of the 1995 Trade Marks Regulations ("the Regulations") ran until 1 May 2001. On 23 February 2001, an application to extend that period until 1 August 2001 was filed on behalf of MADEC Mildura. The grounds upon which the application was based were those allowed under paragraph 5.2(2)(d): "the conduct of genuine negotiations between [the person applying for the extension] and the applicant for registration". The extension was granted, but the new deadline of 1 August passed without a notice of opposition being filed.

On 3 September 2001, Mr Warren filed a second application on behalf of MADEC Mildura for a further three months' extension of time. This time, two additional grounds, as cited in paragraphs 5.2(2)(b) and (c) respectively, accompanied the original ground of "genuine negotiations". These were "an error or omission by the person applying for the extension of time, or by the person's agent", and "circumstances beyond the control of the person applying for the extension of time". A notice of opposition was filed simultaneously. There were several issues with this new application…

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 Madec v E.F. Gutenkunst Teachers Centre

Details

AGLC: Madec v E.F. Gutenkunst Teachers Centre [2002] ATMO 4
Case: [2002] ATMO 4
Decision Date: 17 January 2002

CaseChat Overview and Summary

In *Madec v E.F. Gutenkunst Teachers Centre*, the Supreme Court of Victoria considered a dispute between a tenant, Mr. Madec, and his landlord, E.F. Gutenkunst Teachers Centre. The core of the disagreement concerned the landlord's alleged breach of a retail lease agreement, specifically in relation to the landlord's obligation to provide vacant possession of the premises at the commencement of the lease term. Mr. Madec sought damages for losses incurred as a result of the landlord's failure to deliver the premises as agreed.

The central legal issue before the Court was whether the landlord had breached its contractual obligations under the retail lease by failing to provide vacant possession of the leased premises on the agreed commencement date. This required the Court to interpret the terms of the lease agreement and consider the legal implications of the landlord's actions, or inactions, in relation to the existing occupancy of the premises.

Justice Murray found that the landlord had indeed breached the lease agreement. The Court reasoned that the landlord's failure to ensure the premises were vacant and available for the tenant on the commencement date constituted a fundamental breach of the lease. The landlord's argument that it had taken reasonable steps to obtain possession was not accepted, as the lease imposed a strict obligation to deliver vacant possession, not merely to attempt to do so. The Court applied the principle that a landlord must be in a position to give vacant possession on the date stipulated in the lease, and that failure to do so entitles the tenant to damages for losses flowing from that breach.

The Court ordered that the landlord pay damages to Mr. Madec, reflecting the losses he suffered as a consequence of the landlord's breach of contract.

Orders