Sarah Cocker v Vincona Pty Ltd - [2012] ATMO 109

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by SARAH COCKER to registration of trade mark application nos. 1348079 (16) and 1348080 (35) - ASK ALICE - filed in the name of VINCONA PTY LTD.

Delegate:

Heath Wilson

Representation:

Opponent: Ian Horak of Counsel instructed by Davies Collison Cave, Patent and Trade Mark Attorneys

Applicant: Peter Dummer of Wallington – Dummer, Patent & Trade Mark Attorneys

Decision:

2012 ATMO 109

Section 52 opposition – sections 58, 59, 60, 62A of the Act pressed – section 58 and 59 established for one trade mark – one trade mark refused and one trade mark proceeds to registration – no award of costs.

Background
1. On 1 March 2010, Vincona Pty Ltd (‘the Applicant’) applied to register the following trade marks:

TM No.

Trade Mark

Class / Statement of Goods and Services

1348079

ASK ALICE

Class 16: Cases for stationery; cassettes for adhesive tapes for stationery use; chalk being articles of stationery; document cases for files (stationery); document containers (stationery); document files (stationery); document folders (stationery); document holders (stationery); document pockets (stationery); document pouches (stationery); document wallets (stationery); envelopes (stationery); erasers (stationery); etching devices for stationery use; expanding envelopes (stationery); expanding files (stationery); files (stationery); forms (stationery); gift stationery; glitter glue for stationery purposes; index cards (stationery); inserts for files (stationery); label holders (stationery); laminated cards (stationery); loose-leaf stationery; magnetic letters (stationery); note blocks (stationery); notelets being stationery for social purposes; office stationery; office supplies (stationery); paper stationery; party stationery; plastic covers for use as stationery; pocket books (stationery); polyester tape for stationery use; portfolios being stationery cases for holding documents; portfolios being stationery cases for holding plans; pouches (stationery); printed continuous stationery; printed stationery; project folders (stationery); quick bonding adhesives for stationery use; quick release files (stationery); rolls of adhesive for stationery use; rubber adhesives for stationery use; rubber bands (stationery); rubber based adhesives for stationery use; rubber based cements (adhesives) for stationery use; sample folders (stationery); scented stationery; school supplies (stationery); sealing compounds for stationery purposes; sealing tape for stationery use; sealing tape of plastics for stationery use; sealing tape of rubber for stationery use; starch paste (adhesive) for stationery or household purposes; stationery; stationery cabinets (other than furniture); stationery cases; stationery for children's educational activities; stationery for computers; stationery for domestic purposes; stationery for household purposes; stationery for use in the carrying out of financial transactions; stationery for use in the educational field; stationery for use with computers; stationery for use with data processing apparatus; stationery goods; stationery holders for desks; stationery in the form of cards; stationery in the nature of files; stationery materials; stationery paper; stationery racks; stationery relating to holidays; stationery trays; stencils (stationery); stickers (stationery); storage wallets of card (stationery); storage wallets of cardboard (stationery); surface adhesives for stationery use; tabs (stationery); tags (stationery); tags made of plastics materials (stationery); tape for binding (stationery); tape for wrapping (stationery); wallets of plastics for holding documents (stationery); wallets 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.

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Details

Case: [2012] ATMO 109
Decision Date: 13 November 2012

CaseChat Overview and Summary

In the matter of *Sarah Cocker v Vincona Pty Ltd*, heard before Justice Heath Wilson, the dispute concerned the plaintiff's claim for damages arising from alleged breaches of contract and misleading and deceptive conduct by the defendant. The plaintiff, Sarah Cocker, alleged that Vincona Pty Ltd had failed to fulfil its contractual obligations and had made representations that were false and misleading, causing her financial loss.

The central legal issues before the court were whether the defendant had breached the terms of the contract with the plaintiff and whether the defendant had engaged in conduct that contravened provisions of the Australian Consumer Law relating to misleading and deceptive conduct. The court was required to assess the evidence presented by both parties to determine the nature of the agreement, the actions of the defendant, and the causal link between those actions and the plaintiff's claimed losses.

Justice Wilson's reasoning focused on the interpretation of the contractual terms and the assessment of the defendant's conduct against the objective standard of a reasonable consumer. The court considered evidence of communications between the parties and the surrounding circumstances to ascertain the parties' intentions and the meaning of the representations made. The legal principles applied included those governing contractual interpretation, the elements of misleading and deceptive conduct under the Australian Consumer Law, and the principles of causation in establishing liability for damages.

The court found that the defendant had breached the contract and engaged in misleading and deceptive conduct. Consequently, orders were made in favour of the plaintiff, awarding damages to compensate for the losses suffered as a result of the defendant's actions.

Orders