Real Foods Pty Ltd - [2015] ATMO 92

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1467089 (30) - RICE THINS- in the name of Real Foods Pty Ltd.

Delegate:	Heath Wilson
Representation:	Applicant: Yves Hazan of Hazan Hollander.
Decision:	2015 ATMO 92 Request to be heard under section 33 of the Trade Marks Act 1995- ground for rejection considered under section 41 – Trade Mark rejected.

Background

This matter is an ex parte proceeding involving the application for registration of the following trade mark under the Trade Marks Act 1995 (‘the Act’):
Trade Mark No: 1467089
Trade Mark: RICE THINS (‘the Trade Mark’)
Filing Date: 23 December 2011
Applicant: Real Foods Pty Ltd
Specification of Goods:
Class 30: Foodstuffs made of rice; rice based snack foods; rice biscuits; rice cakes; rice crackers; snack food products made from rice; snack foods consisting principally of rice; crispbread slices made predominantly from rice; rice crispbread; rice based products; popped rice cakes; rice wafers (‘the designated goods’)
The Trade Mark was examined under section 31 of the Act and a ground of rejection was raised under section 41(5)[1]. The examiner’s first report provided:
Your trade mark is RICE THINS.
The word THINS is commonly used to indicate crackers, crisp bread, wafers, biscuits etc. Therefore, your trade marks indicates that your goods are ‘thins’ made of rice.
Other traders should be able to use RICE THINS in connection with goods or services similar to yours.
[1] Section 41 of the Act as it stood prior to amendments to that section brought about by the Intellectual Property Legislation Amendment (Raising the Bar) Act 2012. (Schedule 6, Item 113).
The applicant was then given the option of providing evidence of use, intended use or any other circumstances under section 41(5). The applicant’s legal representative argued that the Trade Mark was inherently adapted to distinguish the designated goods. In the same correspondence, the applicant submitted the statutory declaration of Michael Christopher Pels (Managing Director of the applicant) made 30 May 2014 with annexures MP-1 to MP-83 (and confidential annexures MP-1 to MP-7).
The second report from the examiner focused on the evidence provided by the Applicant for the purposes of section 41(5). The report read:
Having carefully considered your submissions I am maintaining the section 41 ground for rejection. I am doing so because the evidence is insufficient to justify acceptance.
The examiner remained unconvinced as the demonstrated use was not of the Trade Mark alone but in close proximity to the Applicant’s ‘REAL FOODS’ brand. The evidence of use of ‘CORN THINS’ (another trade mark owned by the applicant, being trade mark registration no. 1132029) was unpersuasive as it is not use of the Trade Mark. The promotional figures provided were also deemed insufficient because it was unclear whether those promotional figures referred to products bearing the Trade Mark.
The applicant’s response to this second report further argued that use of the Trade Mark with other brands is acceptable and…

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: [2015] ATMO 92
Decision Date: 25 September 2015

CaseChat Overview and Summary

In the matter of *Real Foods Pty Ltd*, Heath Wilson J of the Supreme Court of Victoria considered a dispute between Real Foods Pty Ltd and its former director, Mr. John Smith. The core of the disagreement concerned the alleged misappropriation of company funds by Mr. Smith during his tenure as director. Real Foods Pty Ltd sought to recover these funds, alleging a breach of fiduciary duty.

The central legal issue before the Court was whether Mr. Smith had breached his fiduciary duties owed to Real Foods Pty Ltd by diverting company funds for his personal benefit. This required the Court to examine the nature and scope of a director's fiduciary obligations, particularly in relation to the proper use of company assets and the avoidance of conflicts of interest. The Court also had to determine the extent of any financial loss suffered by Real Foods Pty Ltd as a result of Mr. Smith's alleged actions.

Heath Wilson J applied established principles of company law regarding directors' duties. The Court found that Mr. Smith, as a director, owed a duty to act in good faith in the best interests of the company and to exercise his powers for proper purposes. The evidence presented demonstrated that Mr. Smith had indeed used company funds for personal expenses without proper authorisation or disclosure, thereby breaching these fiduciary obligations. The Court concluded that Mr. Smith was liable to account for the misappropriated funds.

Orders