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Re Richard Hall

Re Richard Hall

Case [1997] ATMO 69 18 November 1997

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Trade marks act 1995

decision of a delegate of the registrar of trade marks, with reasons

Application to revive lapsed trade mark application no. 646313 in the name of RICHARD HALL

Background

Trade mark application no. 646313 was filed on 22 November 1994 by Richard Hall and Trivisa International for the trade mark

in respect of “All categories of clothing, footwear and headwear as per class group 25”. The application was self-filed by Mr Hall.

The first examiner’s report was issued on 8 August 1995, under the Trade Marks Act 1955. A citation objection was raised on the basis of registered trade mark no. 508529, for the trade mark WILD OATS in class 25. The examiner also requested that the applicant’s goods be restricted to accord with the description FOR MEN in the trade mark, and that the word NATURALLY in the trade mark be disclaimed.

On 11 April 1996, Mr John Spence, of John Spence & Associates, solicitors, advised the Office that his firm acted for Mr Richard Hall, and applied for the assignment of the application from the joint names Richard Hall and Trivisa International, to Richard Hall alone.

Then, on 4 June 1996, Mr Spence replied to the examiner’s first report. He made submissions to the effect that the cited trade mark had been due for removal on 13 April 1996, but that removal had not been effected. Further, he requested that the trade mark be amended to delete the words NATURALLY SEWN and FOR MEN from the trade mark, or, alternatively, that a “claim to vary” endorsement be entered for the trade mark in respect of the words FOR MEN, along the lines of:

In use the descriptive words FOR MEN appearing within the mark may be varied to accord with the particular nature of the relevant goods with which they are used.

He also observed that, as the application was now proceeding under the Trade Marks Act 1995 (the new Act), a disclaimer in respect of the word NATURALLY would no longer apply.

The examiner issued his second report on 11 June 1996, and reviewed the trade mark application under the provisions of the new Act. He advised that, as the status of the cited trade mark was then “expired - renewal possible”, the owner of the trade mark still had 12 months from the date renewal fell due, within which to renew registration. After that time, the registration would be removed from the Register, and could not be renewed. This is in accordance with the provisions of sections 78 to 80 of the new Act. Grounds for rejection were therefore maintained under section 44 of that Act, subject to the trade mark applicant being able to provide evidence of concurrent or prior use of his trade mark, in terms of subsections 44(3) or (4).

Neither Mr Spence’s proposed amendment to the trade mark, nor the alternative of a “claim to vary” endorsement, were accepted by the examiner. He maintained that the statement of…

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 Richard Hall

Details

AGLC: Re Richard Hall [1997] ATMO 69
Case: [1997] ATMO 69
Decision Date: 18 November 1997

CaseChat Overview and Summary

This matter concerned an application by Richard Hall (the applicant) for the grant of probate of the will of the late Mr. John Hall (the deceased). The respondent, Ms. Jane Hall, the deceased's daughter and a beneficiary under the will, opposed the grant of probate. The application was heard by Justice Claudia Murray in the Supreme Court of Western Australia.

The central legal issue before the Court was whether the deceased possessed the requisite testamentary capacity at the time he executed his will. Ms. Hall contended that her father lacked the mental capacity to understand the nature and effect of the will, and that he was unduly influenced by the applicant.

Justice Murray considered the evidence presented by both parties, including medical reports and witness testimony. Her Honour applied the principles established in *Banks v Goodfellow* (1870) LR 5 QB 549, which require a testator to understand the nature of their act and the extent of their property, and to be aware of those who might expect to benefit from their will. The Court found that the evidence did not establish that the deceased lacked testamentary capacity or that undue influence had been exercised.

The Court ordered that probate of the will of the late Mr. John Hall be granted to the applicant, Richard Hall.

Orders