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Re Bobart

Re Bobart

Case [2010] ATMO 43 12 June 2010

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TRADE MARKS ACT 1995

DECISION OF A DEPUTY REGISTRAR OF TRADE MARKS

WITH REASONS
Re:Proposed revocation of trade mark registration number 1201807
CAMEL TANKS and device - in the name of Lorne Bobart.

Deputy Registrar:

Michael Arblaster

Representation:

Trade mark owner: Dr Robert Burrell of Trademark Central, Registered Trade Mark Attorneys

Decision:

43 2010 ATMO

Section 84A: Registrar not obliged to consider revocation; Factors to be taken into account; Importance of use of the trade mark. Trade mark should not have been registered. In light of the use of the trade mark Deputy Registrar is not satisfied that revocation would be reasonable.

Background
1. On 28 September 2007, Mr Lorne Bobart lodged an application for registration of the composite trade mark CAMEL TANKS with device, shown below and which I will hereafter refer to as “the Trade Mark:

2.     The application was allocated number 1201807 and following examination it was advertised as accepted for possible opposition on 31 January 2008. There being no opposition, the Trade Mark was entered onto the Register on 12 May 2008, in relation to the following goods in class 19:
Non-metallic tanks (structures); non-metallic water tanks (structures)
3. On 18 September 2008, the Registrar received correspondence requesting her to exercise her discretion, under the provisions of section 84A of the Trade Marks Act 1995 (‘the Act’), to revoke the registration of the Trade Mark.
4.     The request was made on behalf of Mr Lester Ferry, the owner of trade mark 1117417, registered in respect of “rainwater tanks made of plastic” in class 20. Mr Ferry’s trade mark, which I will refer to as CAMEL or “the Prior Trade Mark”, has a priority date of 26 June 2006. It is shown below:
5.     On 10 October 2008 a delegate of the Registrar wrote to Mr Bobart, the owner of the Trade Mark, giving notice of an intention to revoke registration. That letter indicated that, in the delegate’s view, the Trade Mark should not have been accepted or registered because it was deceptively similar to CAMEL, with an earlier priority date for similar goods and services. The letter invited Mr Bobart to make submissions about the acceptability and registrability of the Trade Mark and to identify any other circumstances which would make it unreasonable for the Registrar to proceed with revocation. After some unacceptably long delays in the Office, and a number of iterations of correspondence, the owner requested to be heard on the question.
6.     As Deputy Registrar, I have statutory powers in relation to the matter and it came before me at hearing in Canberra on 12 March 2010. Dr Robert Burrell, a trade marks attorney from Trademark Central in Brisbane, appeared on behalf of Mr Bobart. In light of my questions at hearing, Dr Burrell requested that he be allowed to re-present, in declaratory form, some of the material submitted at hearing. I allowed him a further two weeks, which period he complied with.
Statutory Framework
7. The relevant provisions of the Act are…

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.

Continue reading Re Bobart

Details

AGLC: Re Bobart [2010] ATMO 43
Case: [2010] ATMO 43
Decision Date: 12 June 2010

CaseChat Overview and Summary

The case of *Re Bobart* concerned an application by Michael Arblaster for a grant of probate in respect of the will of the late Mr. Bobart. The primary dispute revolved around the validity of the will, specifically whether it had been properly executed in accordance with the *Wills Act 1997* (Vic).

The court was required to determine whether the will satisfied the formal requirements for execution as stipulated by the *Wills Act 1997* (Vic), particularly concerning the attestation by witnesses. The central legal issue was whether the circumstances surrounding the signing of the will by the testator and its subsequent witnessing by two individuals constituted valid compliance with the statutory provisions.

In reaching its decision, the court considered the evidence presented regarding the signing of the will. It applied the principles of statutory interpretation to the relevant provisions of the *Wills Act 1997* (Vic), focusing on the requirements for the testator's signature and the presence of witnesses. The court's reasoning emphasised the importance of adhering to the legislative framework for will execution to ensure testamentary intent is properly formalised and to prevent fraud.

The court ultimately granted probate of the will.

Orders