Symbion Pty Ltd - [2015] ATMO 86

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1610191(3,5,32) - HYDRAPLUS- in the name of Symbion Pty Ltd.

Delegate:

Cristy Condon

Representation:

Applicant: Written submissions from Corrs Chambers Westgarth

Decision:

2015 ATMO 86

Ex parte application to be heard under section 33(4) of the Trade Marks Act 1995 – s44 considered - trade mark will proceed to acceptance

Background

The following is an ex parte proceeding in relation to Australian trade mark application 1610191.
Symbion Pty Ltd (‘the Applicant’) filed the application on 7 March 2014 in classes 3, 5 and 32 for the following trade mark and statement of goods:

Trade Mark: HYDRAPLUS (‘the Trade Mark’)

Specification of goods:

Class 3: Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps including liquid soaps and body washes; perfumery; essential oils; cosmetics; cosmetic preparations for skin, nail and hair; hair lotions; dentifrices; sun-tanning preparations, sunless tanning preparations, after sun preparations and lip balms in this class; dental care preparations (non-medicated); products for dental care and hygiene (non-medicated); deodorants; hair treatment compositions including shampoos and conditioners; protective creams (non-medicated); preparations for personal hygiene (non-medicated); skin, nail and hair care preparations; animal care products (other than for veterinary use)
Class 5: Pharmaceutical and veterinary preparations and substances; sanitary preparations for medical purposes; pharmaceutical preparations for health care; vitamins and vitamin preparations; multi-vitamin drinks; electrolyte preparations; electrolyte replacement beverages for medical purposes; dietetic food and substances adapted for medical use or veterinary use; dietetic preparations; dietary supplements for humans and animals; food additives and supplements; natural health foods and herbal remedy products in this class; pharmaceutical compositions containing vegetable extracts; minerals; food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; antiseptics; protective creams; preparations for destroying vermin; fungicides; herbicides; sun-blocking and skin protection lotions; sun-screen products in this class; chemical products for dental purposes; materials for dental treatment; medicines for dental purposes; medicated products for dental care and hygiene; nutritional supplements; medicated nutritional supplements; nutritional supplements including probiotic compositions; medical wound dressings; incontinence products; diarrhoea mixtures; skin care preparations including medicated skin care preparations; pharmaceutical preparations containing fish oil; fish oil for medical purposes; evening primrose oil for medical use; tonics (medicine); dietetic substances for medical use in weight control; preparations for personal hygiene (medicated); preparations for the care of nails (medicated); medicated hair care products; animal care products for veterinary use
Class 32: Non alcoholic beverages; electrolyte replacement beverages for general and sports purposes

The Trade Mark was examined as mandated by section 31 of the Trade Marks Act1995 (‘the Act’).

In the first report the examiner identified a ground for rejection under section 44 of the Act and decided to cite registered trade mark no. 1383500 HYDRA (‘the cited trade mark’). Over the course of five examination reports (during which the Applicant proposed an amendment to its class 5 specification) the examiner maintained the ground for…

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 Symbion Pty Ltd

Details

AGLC: Symbion Pty Ltd [2015] ATMO 86
Case: [2015] ATMO 86
Decision Date: 16 September 2015

CaseChat Overview and Summary

In the matter of Symbion Pty Ltd, the Supreme Court of Queensland was asked to determine whether a company director, Cristy Condon, had breached her duties under the *Corporations Act 2001* (Cth) by failing to prevent the company from incurring debts when there were reasonable grounds to suspect it was insolvent. The dispute arose from allegations that Ms. Condon, as a director of Symbion Pty Ltd, allowed the company to continue trading and incur further debts despite the company's precarious financial position.

The central legal issue before the Court was whether Ms. Condon had breached section 588G of the *Corporations Act 2001*, which imposes a duty on directors to prevent a company from incurring debts if the company is insolvent or becomes insolvent by incurring the debt, and if there are reasonable grounds for suspecting insolvency. The Court was required to assess the evidence to determine if Ms. Condon had reasonable grounds to suspect insolvency and, if so, whether she took all reasonable steps to prevent the company from incurring the debts in question.

The Court considered the director's knowledge and the information available to her at the relevant times. It applied the principles established in case law regarding the standard of care and diligence expected of directors, particularly in circumstances where financial difficulties arise. The Court analysed the financial records and communications available to Ms. Condon, assessing whether a reasonable director in her position would have formed the suspicion of insolvency and what steps, if any, were taken to address the company's financial position. The Court's reasoning focused on the objective test of whether reasonable grounds for suspicion existed, rather than Ms. Condon's subjective belief.

Orders