One Mode Productions Limited - [2014] ATMO 89

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1556294(9, 16, 25, 41) - 5SOS - in the name of One Mode Productions Limited.

Delegate:

Iain Campbell Thompson

Representation:

Applicant: Mark Williams of Allens, Patent & Trade Mark Attorneys

Decision:

2014 ATMO 89

Subsection 33(4) proceedings: s44; goods and services closely related; trade marks deceptively similar; application rejected

Background

This matter arises out of the filing of an application by One Mode Productions Limited (‘the Applicant’) under the Trade Marks Act 1995 (‘the Act’) to register a trade mark detailed hereunder. The goods and services below are those which have been restricted and/or qualified following the Examiner’s report:

Application No: 1556294

Filing Date: 8 May 2013

Convention Claim: 011523388 OHIM
Goods/Services: Class 9: Apparatus for recording, transmitting or reproduction of sound, music, images, data and videos; sound, music, image, data and video recordings; multimedia productions; motion picture films; television films and programmes; animations; 3D motion picture films, television films and programmes, and animations; radio programmes; recording materials used for storage and transmission of digital and analogue data, images, sounds and recordings; pre-recorded audio and/or video media, CDs, CDRs, DVDs, DVDRs, Digital Audio Tapes, Digital Audio Cassettes, HD discs, 3D discs, mini-discs, records, tapes, cassettes, discs and flash drives; laser-read discs for recording, reproducing, transmitting and playing sound, images, music, data or video; optical-read discs for recording, reproducing, transmitting and playing sound, images, music, data or video; audio, image, data and video files provided from the Internet; audio files in MP3 format; audio and/or video files in electronic format provided from the Internet; video files in MP4 format; MP4 videos; application software for mobile devices, tablet computers and smartphones; mouse mats; downloadable digital music or sound files provided from the Internet; downloadable digital video, image, film and TV files and programmes provided from the Internet; downloadable digital video, image, film and TV files and programmes provided from MP4 web sites on the Internet; refrigerator magnets; downloadable electronic media; publications downloaded in electronic form from the Internet; downloadable electronic publications provided from databases or the Internet; ebooks; audio books on CD, mini-disc, record, cassette or disc; talking books; printed matter in electronic form; on-line publications, magazines, periodicals and newspapers; text, audio and/or visual images and data transmitted by electrical or electronic means; printed matter in electronic form; photographs and stills in electronic form; sunglasses; eyewear; parts, fittings and accessories for the aforesaid goods
Class 16: Paper, cardboard and goods made from these materials; printed matter; printed publications; stationery; advertising materials; books; pamphlets; magazines; postcards; pictures; posters; diaries; drawing instruments; greeting cards; address books; catalogues; brochures; programs; tickets; VIP tickets; laminated tickets and VIP tickets; calendars; photographs; signed photographs; autographed printed items; photographic albums; autograph albums; newspapers; newsletters; notelets; note pads; note books; stickers; decalcomanias; paper files; periodicals; instruction manuals; instructional and teaching materials; record token cards; gift token cards; wrapping paper; writing implements; pens; ballpoint pens; fountain pens; pencils;…

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.

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Details

Case: [2014] ATMO 89
Decision Date: 24 September 2014

CaseChat Overview and Summary

One Mode Productions Limited (the applicant) sought judicial review of a decision made by the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the applicant a visa. The application was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. This involved determining whether the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decision.

The Court considered the Minister's delegate's assessment of the applicant's claims for protection. It was found that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the risk of future persecution in their country of origin. The delegate's reasoning was found to be superficial and did not engage with the specific details of the applicant's claims. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a thorough and genuine consideration of all relevant evidence.

The Court found that the decision was affected by jurisdictional error and ordered that the decision of the Minister be set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders