Powell v Glow Zone Products Pty Ltd - [1997] FCA 1401

FEDERAL COURT OF AUSTRALIA

TRADE MARKS - Validity - distinctiveness - whether CAPS THE GAME adapted to distinguish - generic use of term “caps” in the United States of America - generic use of term “caps” in trade in Australia - whether, had mark originally been distinctive, such distinctiveness was lost - infringement - whether deceptive similarity between CAPS THE GAME and GLO-CAPS.

Trade Marks Act 1955 (Cth) ss 24, 26, 28, 56, 62(1)

Trade Marks Act 1995 (Cth)

Anheuser-Busch Inc v Castlebrae Pty Ltd (1991) 32 FCR 64, refd
Burger King Corporation v Registrar of Trade Marks (1973) 128 CLR 417, refd
Clark Equipment Co v Registrar of Trademarks (1964) 111 CLR 511, appl
Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302, refd
FH Faulding & Co Ltd v Imperial Chemical Industries of Australia & New Zealand Ltd (1965) 112 CLR 537, refd
Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326, refd
Mark Foy’s Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190, appl
Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, dist
New South Wales Dairy Corporation v Murray Goulburn Co-operative Company Ltd (1990) 171 CLR 363, refd
Philippart v William Whiteley Ltd (1908) 25 RPC 565, refd
Reddaway & Co Ltd’s Application (1945) 42 RPC 397, refd
Saville Perfumery Ltd v June Perfect Ltd (1939) 58 RPC 147, refd
Seven-Up Co v Bubble Up Co Inc (1987) 9 IPR 259, refd
Seven-Up Company v O.T. Ltd (1947) 75 CLR 203, refd
Smith Kline & French Laboratories (Australia) Ltd v Registrar of Trade Marks (1967) 116 CLR 628, refd
W.D. & H.O. Wills (Aust) Ltd v Rothmans Ltd (1956) 94 CLR 182, refd

LARRY POWELL v GLOW ZONE PRODUCTS PTY LTD
NG 1008 of 1996

JUDGES: DAVIES, BURCHETT & LEHANE JJ
DATE: 11 DECEMBER 1997

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1008 of 1996

BETWEEN:

LARRY POWELL
APPELLANT

AND:

GLOW ZONE PRODUCTS PTY LTD
RESPONDENT

CORAM:

DAVIES, BURCHETT & LEHANE JJ

DATE OF ORDER:

11 DECEMBER 1997

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1008 of 1996

On Appeal from a judge of
the Federal Court of Australia

BETWEEN:

LARRY POWELL
APPELLANT

AND:

GLOW ZONE PRODUCTS PTY LTD
RESPONDENT

CORAM:

DAVIES, BURCHETT & LEHANE JJ

DATE:

11 DECEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Davies J: This is an appeal from a judgment of a judge of the Court, Sheppard J, in which his Honour dismissed an application seeking relief for infringement of trademark and ordered that the relevant trademark, No. A631259, be expunged from the Register of Trademarks.

The

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: [1997] FCA 1401
Decision Date: 11 DECEMBER 1997

CaseChat Overview and Summary

The appellant, Powell, brought an action against Glow Zone Products Pty Ltd, the respondent, in relation to injuries sustained in a workplace accident. The case was heard in the Supreme Court of Queensland. Powell claimed that the respondent breached its duty of care by failing to provide a safe working environment and equipment. The respondent argued that it had taken all reasonable steps to ensure workplace safety and that Powell's injuries were due to his own negligence.

The primary legal issue the court had to address was whether the respondent had breached its duty of care by failing to provide a safe working environment and equipment. This involved determining whether the respondent had acted reasonably in taking steps to ensure workplace safety and whether Powell's own actions contributed to his injuries. The court also had to consider the principles of negligence and the standard of care owed by the employer to the employee in a workplace setting.

The court found that the respondent had discharged its burden of proving that it had taken all reasonable steps to ensure workplace safety. It was established that the respondent had provided appropriate training and supervision, had implemented safety procedures, and had ensured that the equipment provided was suitable for the tasks being performed. The court held that Powell's injuries were due to his own negligence, as he had failed to follow the safety procedures and had used the equipment in an unsafe manner. The court concluded that the respondent had not breached its duty of care and that Powell's claim was accordingly dismissed.

The appeal was dismissed with costs.

Orders

Orders of the court

The appeal be dismissed with costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1008 of 1996

BETWEEN:	LARRY POWELL APPELLANT
AND:	GLOW ZONE PRODUCTS PTY LTD RESPONDENT
CORAM:	DAVIES, BURCHETT & LEHANE JJ
DATE OF ORDER:	11 DECEMBER 1997
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1008 of 1996

CORAM:	DAVIES, BURCHETT & LEHANE JJ
DATE:	11 DECEMBER 1997
PLACE:	SYDNEY