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Rob Bowra v Industrial Progress Corporation Pty Ltd

Rob Bowra v Industrial Progress Corporation Pty Ltd

Case [2016] ATMO 48 12 July 2016

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TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Rob Bowra to registration of trade mark application 1578456 (6) - ROOF-SPAN - in the name of Industrial Progress Corporation Pty Ltd

Delegate: Michael Kirov

Representation: Opponent: Did not appear or file written submissions
Applicant: Cynthia Cochrane of Counsel, assisted by David Larish of Counsel, instructed by Ewa Sarolis of Kanji & Co, Solicitors

Decision: 2016 ATMO 48
Opposition under section 52 of the Trade Marks Act 1995: ss 59, 60 and 62A considered - prima facie presumption of Applicant’s intention to use not displaced and actual use shown – insufficient reputation on which to base s 60 ground – no evidence of bad faith – opposition not established.
Background

This is an opposition brought by Rob Bowra (“the Opponent”) pursuant to s 52 of the Trade Marks Act 1995 (“the Act”) to registration of the trade mark subject of the application detailed below in the name of Industrial Progress Corporation Pty Ltd (“the Applicant”):
Application Number:          1578456
Filing Date:  4 September 2013
Goods:Class 6: metal roofing and/or walling material
Trade Mark:  ROOF-SPAN                  (“the Opposed Mark”)
Acceptance of the opposed application for possible registration was advertised in the Australian Official Journal of Trade Marks on 30 January 2014. The Opponent filed a formal Notice of Intention to Oppose on 27 March 2014, followed by a Statement of Grounds and Particulars (“SGP”) on 27 April 2014 raising opposition grounds corresponding to ss 59, 60 and 62A of the Act. The Applicant filed a Notice of Intention to Defend on 30 May 2014.
For their evidence the parties rely on the following declarations made pursuant to the Act and reg. 21.6 of the Trade Marks Regulations 1995 (“the Regulations”):
Evidence in Support
▪ Rob Bowra made 31 August 2014, with Exhibits A to R and Appendixes A1 to A5 (“Bowra 1”)
Evidence in Answer
▪ Anil Kumar made 5 December 2014, with Exhibits A to H (“Kumar”)
Evidence in Reply
▪ Rob Bowra made 21 March 2015 (“Bowra 2”)
I will refer as necessary to the parties’ evidence in the discussion below, but for now note the following by way of background. Anil Kumar has been a Director of the Applicant since 10 September 1998. He says that the Applicant is based in Western Australia and was incorporated on 23 January 1974 under the name Osborne Metal Industries (Bunbury) Pty Ltd before changing to its current name on 13 December 1984. As Mr Kumar further explains in his declaration:
3. [The Applicant] manufactures, markets and distributes steel building products and has done so since 1984. Through its division known as Roofmart WA it specifically manufactures steel roofing products. [The Applicant] is a leading manufacturer of steel roofing in Western Australia.
4. In about 2009 Roofmart/[the Applicant] developed a roll formed, custom-length, high tensile steel…

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 Rob Bowra v Industrial Progress Corporation Pty Ltd

Details

AGLC: Rob Bowra v Industrial Progress Corporation Pty Ltd [2016] ATMO 48
Case: [2016] ATMO 48
Decision Date: 12 July 2016

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Magistrates Court of Queensland. The appellant, Rob Bowra, sought to appeal against a judgment of the Magistrates Court which found in favour of the respondent, Industrial Progress Corporation Pty Ltd, in relation to a claim for unpaid rent and damages.

The primary legal issues before the court were whether the appellant had breached the terms of a commercial lease agreement by failing to pay rent and whether the respondent had adequately mitigated its losses by re-letting the premises. The court was also required to consider the proper assessment of damages for the period the premises remained vacant.

Justice Kirov found that the evidence presented established a clear breach of the lease agreement by the appellant. The court applied the principles of contract law, holding that a party in breach of a lease is liable for the rent due for the remainder of the term, subject to the landlord's duty to mitigate its losses. The court was satisfied that the respondent had taken reasonable steps to re-let the premises, thereby fulfilling its duty to mitigate. The assessment of damages was therefore based on the difference between the rent reserved under the original lease and the rent obtained under the new lease, for the unexpired portion of the original term.

The appeal was dismissed, and the judgment of the Magistrates Court was affirmed.

Orders