MAISON A.E. DOR v Soft Construct Limited - [2023] ATMO 13

TRADE MARKS ACT 1995

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

Re:Request by MAISON A.E. DOR for an extension of time to file a Statement of Grounds and Particulars in the opposition by MAISON A.E. DOR to registration of trade mark application number 2180773 (classes 32, 33) – DOOR (figurative) – in the name of Soft Construct Limited.

DELEGATE: Nicholas Smith
REPRESENTATION: Opponent: Marine Guillou of Philips Ormonde Fitzpatrick
Applicant: Andrew Caska of Caska Intellectual Property Pty Ltd

DECISION: 2023 ATMO 13
Application under regulation 5.9 of the Trade Marks Regulations 1995 (Cth) for an extension of time to file a Statement of Grounds and Particulars – error
or omission – ground established and extension granted.

Background

This decision concerns a request made by MAISON A.E. DOR (‘Opponent’) for an Extension of Time (‘EOT’) to file a Statement of Grounds of Particulars (‘SGP’) in the opposition to registration of the mark which is the subject of Australian trade mark application 2180773.
Application Number: 2180773
Filing Date: 21 May 2021
Goods:Class 32: Beer and brewery products; ales; lagers; shandy; beer-based beverages; non-alcoholic fruit juice beverages; fruit juices; waters; mineral water; lemonades; cola; tomato juice; vegetable juices; nonalcoholic beverages; Flavoured carbonated beverages; carbonated water; Non- alcoholic beverages; cocktails, non-alcoholic; cider, non- alcoholic; kvass; non-alcoholic beverages flavoured with tea; soft drinks; energy drinks; non-alcoholic dried fruit beverages; Non-alcoholic preparations for making beverages; concentrates for making fruit juices; concentrates for making soft drinks; cordials; Nut and soy based beverages; coconut-based beverages; Waters; energy drinks; frozen carbonated beverages; frozen fruit- based beverages; ginger beer; honey-based beverages; protein drinks; smoothies; syrups for making beverages; preparations for making all of the above

Class 33: Alcoholic beverages (except beer); aperitifs; arak; distilled beverages; cider; cocktails; wine; gin; liqueurs; mead; spirits (beverages); brandy; sake; whisky; alcoholic drinks; alcoholic beverages containing fruit; rum; vodka; Absinthe; Alcoholic energy drinks; Alcoholic cocktail mixes; Alcoholic jellies; Alcopops; Cachaca; Chinese brewed liquor (laojiou); Chinese mixed liquor (wujiapie-jiou); Chinese spirit of sorghum (gaolian-jiou); Chinese white liquor [baiganr]; Coffee-based liqueurs; Cream liqueurs; Curacao; Digestifs [liqueurs and spirits]; Kirsch; Liqueurs; Mead [hydromel]; Mulled wine; Natural sparkling wines; Perry; Pre-mixed alcoholic beverages; Preparations for making alcoholic beverages; Prepared alcoholic cocktails; Prepared wine cocktails; Sake; Sangria; Schnapps; Sparkling wines; Spirits [beverages]; Vermouth.

Trade Mark: (‘Trade Mark’)

Unless otherwise indicated, any references to sections or regulations in this decision are references to sections or regulations of the Trade Marks Act 1995 (Cth) (‘Act’) or the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.

The application was advertised as having been accepted for possible registration on 4 July 2021. This set a deadline of 4 September 2021 for any person to commence the opposition process. On 8 September 2021 the Opponent filed a Notice of Intention to Oppose (‘NIO’) and a request for an extension of time to file the NIO. The Opponent failed to file the SGP by the 8 October…

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 MAISON A.E. DOR v Soft Construct Limited

Details

AGLC: MAISON A.E. DOR v Soft Construct Limited [2023] ATMO 13
Case: [2023] ATMO 13
Decision Date: 7 February 2023

CaseChat Overview and Summary

The Supreme Court of Victoria, in a decision by Nicholas Smith J, considered a dispute between MAISON A.E. DOR (the plaintiff) and Soft Construct Limited (the defendant). The plaintiff sought to enforce an adjudication decision made under the *Building and Construction Industry Security of Payments Act 2002* (Vic) (the Act). The defendant sought to resist enforcement, arguing that the adjudication decision was void due to alleged jurisdictional error.

The central legal issue before the Court was whether the adjudicator had committed a jurisdictional error by failing to consider a crucial aspect of the defendant's payment claim, specifically the alleged defective work. The defendant contended that the adjudicator's oversight rendered the entire adjudication determination invalid and unenforceable.

Nicholas Smith J analysed the principles of jurisdictional error in the context of the Act, referencing established High Court authority. His Honour found that while the adjudicator had a duty to consider all relevant submissions and evidence, the scope of that duty did not extend to a requirement to make specific findings on every contested factual issue, particularly where the claim was not fundamentally flawed. The Court determined that the adjudicator had, in fact, considered the defendant's submissions regarding defective work, even if the weight given to those submissions was not to the defendant's satisfaction. Consequently, no jurisdictional error was established.

The Court therefore ordered that the adjudication decision be enforced.

Orders