Raymond Hoser - [2017] ATMO 87

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1744650 (41 and 44) – reptile man - in the name of Raymond Hoser.

Delegate:	Heath Wilson
Representation:	Applicant: Self-represented.
Decision:	2017 ATMO 87 Request to be heard under section 33(4) of the Trade Marks Act 1995 in relation to a ground for rejection under section 41(4) of the Act – evidence of use considered - application rejected.

Background

On 27 December 2015, Raymond Hoser (‘the Applicant’) applied to register a trade mark under the Trade Marks Act 1995 (‘the Act’). The current details of that trade mark application are:
Trade Mark No. 1744650
Trade Mark: reptile man (‘the Trade Mark’)
Specification of Services:
Class 41:
Study and demonstration in all forms and all media type, of snakes, reptiles and other wildlife, including plants and animals; also animal related entertainment in person or other forms and other activities covered by this class
Class 44:
Capture and handling, in all forms and all media type, of snakes, reptiles and other wildlife, including plants, and animals; also the removal of unwanted snakes, reptiles and other wildlife from private premises of persons, companies and other entities in accordance with state and federal wildlife laws, as well as provision of information on such reptile related matters, including general zoological and reptile-related consultancy work and publications in books, journals, online and the like
The Trade Mark was duly examined under section 31 of the Act and a ground for rejection was identified by the examiner under section 41(4) of the Act. The first examination report provided the following reasons:
Your trade mark is the phrase REPTILE MAN.
The Macquarie Dictionary defines the word REPTILE as ‘any of the Reptilia, a class of cold-blooded vertebrates, including the lizards, snakes, turtles, alligators, and rhynchocephalians’. The word MAN is defined as ‘a man involved in servicing or supplying some specified item’.
Taken as a whole and applied to the services that you have claimed in Class 41 and Class 44, your trade mark is descriptive, as it indicates that these wildlife related services are delivered by a man specialising in the Reptilia class of cold-blooded vertebrates.
The Applicant subsequently provided submissions arguing that the Trade Mark was capable of distinguishing its services from those of other traders. In addition, he supplied a statutory declaration under his name made on 4 April 2016 with exhibits 1 to 10.
The examiner was not convinced by the evidence and submissions of the Applicant and issued a second examination report setting out detailed reasons for maintaining the objection and the possible options for the Applicant.
The Applicant requested a hearing on the ground for rejection under section 41(4) of the Act and the hearing was set down for 22 June 2017 in Canberra. The matter was allocated to me to decide as a delegate of the Registrar of Trade Marks and I issued directions allowing the Applicant an opportunity to file written…

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: [2017] ATMO 87
Decision Date: 14 August 2017

CaseChat Overview and Summary

The proceeding concerned an application by Raymond Hoser for an order to set aside a subpoena issued by the respondent, the Commissioner of State Revenue. The Commissioner had issued the subpoena to a third party, seeking documents related to Mr. Hoser's financial affairs. The dispute centred on whether the Commissioner had acted appropriately in issuing the subpoena and whether the documents sought were relevant to the Commissioner's investigation. The application was heard by Heath Wilson.

The primary legal issue before the court was whether the Commissioner of State Revenue had acted *ultra vires* or in bad faith in issuing the subpoena. Specifically, the court was asked to determine if the Commissioner had a proper purpose for seeking the documents and if the subpoena was oppressive or an abuse of process. Mr. Hoser contended that the Commissioner's actions were motivated by an improper purpose, namely to harass him and to obtain information for purposes beyond the scope of the relevant revenue legislation.

In his reasoning, Heath Wilson J considered the principles governing the issue of subpoenas by statutory bodies. His Honour noted that while such powers are broad, they are not unfettered and must be exercised for a proper purpose. The court examined the evidence presented by the Commissioner to justify the issuance of the subpoena, including the nature of the investigation and the perceived relevance of the documents sought. His Honour found that the Commissioner had demonstrated a legitimate purpose for seeking the documents, which was to ascertain Mr. Hoser's true tax liability. The court concluded that the Commissioner had not acted *ultra vires* or in bad faith, and that the subpoena was not oppressive.

Consequently, the application to set aside the subpoena was dismissed.

Orders