Television Food Network, GP v Food Channel Network Pty Ltd

[2007] FCA 295

FEDERAL COURT OF AUSTRALIA

Television Food Network, GP v Food Channel Network Pty Ltd [2007] FCA 295

TELEVISION FOOD NETWORK, GP v FOOD CHANNEL NETWORK PTY LTD ACN 079 015 339
QUD18 OF 2007

COLLIER J
6 MARCH 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD18 OF 2007

BETWEEN:	TELEVISION FOOD NETWORK, GP Applicant
AND:	FOOD CHANNEL NETWORK PTY LTD ACN 079 015 339 Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	6 MARCH 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to O 58 r 4(2) the applicant have leave to file and serve within seven (7) days of the date of this order a notice of appeal from the decision of the Registrar of Trade Marks dated 29 November 2006 in relation to trade mark application number 967804 pursuant to s 56 of the Trade Marks Act 1995.

2.There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD18 OF 2007

BETWEEN:	TELEVISION FOOD NETWORK, GP Applicant
AND:	FOOD CHANNEL NETWORK PTY LTD ACN 079 015 339 Respondent

JUDGE:	COLLIER J
DATE:	6 MARCH 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is a notice of motion filed 18 January 2006 seeking an order pursuant to O 58 r 4(3) Federal Court Rules that the time for filing an appeal from the decision of a Delegate of the Registrar of Trade Marks (“Delegate”) dated 29 November 2006 in relation to trade mark application number 967804 filed by the respondent, be extended to seven days after the hearing of this motion. The motion is supported by affidavits of Ms Angeline Behan sworn 17 January 2007 and Ms Nadia Braad affirmed 2 March 2007.

2. Order 58 Federal Court Rules applies to intellectual property cases. Relevantly, O 58 r 4 provides:

   ……

   (2)      An appeal must be instituted within 21 days after the date of the decision appealed from or within such further time as the Court fixes, unless a law of the Commonwealth provides otherwise.
   ……

   (3)      Application may be made to the Court to extend the time for filing, by notice of motion:
              (a)       made at any time -- unless a law of the Commonwealth provides otherwise; and
              (b)       supported by affidavit showing special circumstances.

3. The circumstances which led to this application were explained this morning by Mr Bennett for the applicant. I note that the application is unopposed by the respondent. Accordingly whether to grant an extension of time in this case is a matter for the discretion of the Court.

4. In Kabushiki Kaisha Universal v Aristocrat Leisure Industries Pty Ltd (1998) AIPC ¶91-396 Branson J considered the factors to be taken into account under O 58 r 4(3). They are as follows:

   (a)       the length of the delay;
   (b)      the explanation for the delay, and in particular, whether the plaintiff is personally blameless for the delay;
   (c)       any prejudice to the respondent or to other persons, arising out of the delay;
   (d)      actions taken by the applicant to alert the respondent to the fact that the decision is, or may be, contested;
   (e)       the merits of the proposed appeal;
   (f)       alternative avenues of relief, if any, available to the applicant;
   (g)       questions of public interest, if any, in the subject matter of the appeal.

5. The list articulated by Branson J has been adopted in a number of cases including Australian Olympic Committee Inc v Calder (2000) 49 IPR 39 per Sackville J.

6. In the case before me, the delay was from 20 December 2006 to 18 January 2006. However taking into account the Christmas period it appears that the delay amounted to only 6 business days. The explanation for the delay is clearly that a mistake was made on the part of the trade mark attorney in calculating the time frame for lodging an appeal. It would appear that the applicant itself is not in any way responsible for the mistake. It also appears that the letter from the Delegate which accompanied the Delegate’s decision may have been confusing in its terms.

7. I note that the respondent does not oppose the application. I infer from this that the respondent has experienced no prejudice from the applicant’s delay in bringing this application.

8. It is not possible to form any views at this stage in relation to the merits of this case.  However, I am prepared to assume that the case has merit for the purposes of this application.

9. I note that the applicant has no avenue of redress in respect of the decision of the Delegate other than an appeal to this Court.

10. Accordingly, subject to a clarification which I will now seek from Mr Bennett, I propose to grant the orders sought by the applicant.

    THE COURT ORDERS THAT:

    1.Pursuant to O 58 r 4(2) the applicant have leave to file and serve within seven (7) days of the date of this order a notice of appeal from the decision of the Registrar of Trade Marks dated 29 November 2006 in relation to trade mark application number 967804 pursuant to s 56 of the Trade Marks Act 1995.

    2.There be no order as to costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        7 March 2007

Solicitor for the Applicant:	Bennett & Philp
Solicitor for the Respondent:	Thynne & Macartney
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007