Nissan Motor Co (Australia) Pty Ltd v Vector Aeromotive Corporation

This case concerned an opposition by Vector Aeromotive Corporation, a United States corporation, to a trade mark application lodged by Nissan Motor Co (Australia) Pty Ltd for the word "VECTOR" in relation to motor vehicles, parts, and accessories. The opposition was based on the claim that the opponent was the prior proprietor of the trade mark in Australia. The central issue before the delegate of the Registrar of Trade Marks was to determine proprietorship of the mark, with the relevant date for this determination being the date of the applicant's trade mark application lodgment.

The legal issues before the court were whether the opponent, Vector Aeromotive Corporation, had established prior use of the trade mark "VECTOR" in Australia in the course of trade, such that it was the proprietor of the mark at the time Nissan lodged its application. This involved considering what constitutes "use" of a trade mark in Australia for the purposes of establishing proprietorship, particularly in the context of overseas use and the dissemination of information about a product. The court also had to assess whether any use by the opponent constituted an actual trade or an offer to trade in goods bearing the mark, or an existing intention to offer or supply such goods in trade within Australia.

The court reasoned that proprietorship of a trade mark in Australia is primarily determined by the first use of the mark in the course of trade within Australia. While overseas use can provide a forensic advantage, it does not confer proprietorship in Australia. The court found that the opponent's evidence, including magazine articles, a television program, and expressions of interest from potential buyers, did not demonstrate actual use of the mark as a trade mark in Australia. These instances were considered to be the dissemination of information rather than an offer to trade or actual trade in the goods. The court noted that the letter from Mr D'Apice, relied upon by the opponent, was dated after the applicant's lodgment date and was merely a request for information. Consequently, the court concluded that the opponent had not established prior use of the trade mark "VECTOR" in Australia in the relevant sense.

As a result of finding that there had been no use as a trade mark of the word VECTOR in relation to motor vehicles by the opponent before the date of the applicant's application, the opposition was dismissed. The applicant's trade mark was directed to proceed to registration, and costs were awarded to the applicant.