Pacific Ventures International Limited v Johnny Rockets Licensing Corporation

Pacific Ventures International Limited (PVIL) sought to restrain Johnny Rockets Licensing Corporation (JRLC) from infringing its trade mark, "Johnny Rockets", used in relation to restaurant services. PVIL alleged that JRLC's proposed use of the same mark for similar services in Australia would cause confusion and damage to its business. JRLC, however, contended that it had prior rights to the mark in Australia, having registered it in 1996, and that PVIL's use of the mark in Australia was later and therefore infringing. The matter came before Vija Zars.

The central legal issue before the court was whether JRLC's trade mark registration for "Johnny Rockets" was valid and subsisting, or if it had lapsed due to non-use. This determination was crucial to resolving the infringement claim, as the validity of JRLC's registration would dictate whether PVIL could establish prior rights or if JRLC's registration constituted a valid defence to the infringement claim.

The court considered the evidence presented regarding the use of the "Johnny Rockets" trade mark in Australia. It was found that JRLC had not used the trade mark in Australia for a continuous period of three years prior to PVIL's application to remove JRLC's registration. Consequently, the court held that JRLC's trade mark registration had lapsed due to non-use and was therefore invalid. This finding meant that JRLC could not rely on its registration to defend against PVIL's infringement claim.