Transport Tyre Sales Pty Ltd v Montana Tyres Rims and Tubes Pty Ltd

The appeal in Transport Tyre Sales Pty Ltd v Montana Tyres Rims and Tubes Pty Ltd was brought by Montana against the registration of an assignment of three trade marks by Ohtsu to Transport Tyre. Montana sought the cancellation of the assignment and the rectification of the Register of Trade Marks. The primary Judge found in Montana's favour and ordered the rectification of the Register. Transport Tyre appealed against this order and others made in connection with the challenge to the assignment. The legal issues before the court were whether the trade marks were registrable as Transport Tyre's trade marks and whether the entries recording the assignments were liable to cancellation. The primary Judge held that the trade marks were not capable of distinguishing Transport Tyre's goods from those of other persons and that the entries recording the assignments were liable to cancellation. The court found that the primary Judge had erred in his approach to the assessment of evidence and in his conclusions on the relevant issues. The appeal was allowed in part, and the orders made by the primary Judge were set aside in part and remitted to the trial Judge for further determination. The court ordered that the application be dismissed except for the claim for damages, which was to be remitted to the trial Judge. The cross-claim was also to be remitted to the trial Judge for determination of the questions of contravention of the Trade Practices Act. The costs of the trial and the remitted parts of the claim and cross-claim were to abide the discretion of the Judge trying those issues. The appeal was otherwise dismissed, and no order was made for the costs of the appeal.