Aqua Technics Pool and Spa Centre v Aqua-Tech Lmited - [2007] NZSC 52

IN THE SUPREME COURT OF NEW ZEALAND
SC 24/2007
[2007] NZSC 52

BETWEENAQUA TECHNICS POOL AND SPA CENTRE NZ LIMITED

Applicant

ANDAQUA-TECH LIMITED

Respondent

Court:Elias CJ, Blanchard and McGrath JJ
Counsel:J G Miles QC and D L Marriott for Applicant

K W McLeod for Respondent

Judgment:9 July 2007

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $2,500 to the respondent.

REASONS

[1]       This application for leave relates to a dispute about an application for a trade mark, “Aqua-Tech”, for swimming pools and spa pools. The respondent made the application on 31 August 2001. At that time the present applicant had been using the trade mark “Aqua Technics” on swimming pools since April 2001 and had also applied for trade marks. The applicant objected to the respondent’s application on the basis of that prior use. It was therefore necessary for the respondent to show that it had been using its mark on swimming pools and spa pools before 2001.
[2]       The Assistant Commissioner of Trade Marks found that the respondent’s use was insufficient to establish proprietorship of the claimed mark. The High Court overturned that decision and the Court of Appeal agreed with the High Court. Both Courts said there was prior use by the respondent; that the evidence established that it had used the trade mark prior to 31 August 2001.
[3]       The critical difference between the Courts and the Assistant Commissioner seems to have been that the Assistant Commissioner did not think that there was shown to be a connection between Aqua-Tech and the relevant goods in the minds of members of the public. The Courts found that it was sufficient that people in the trade would, because of the use of the mark by the respondent in its catalogues, see the necessary connection, that is the link between the respondent and the origin of the goods. The Courts did not consider that the respondent was merely using the name Aqua-Tech as a company name.
[4]       The major plank in the application for leave is that the Courts failed to have adequate regard or give adequate weight to the views of the Assistant Commissioner. The different view taken by the Courts was not, however, simply a matter of factual assessment concerning the use made of a mark. The Assistant Commissioner found that the trade would see a connection between the respondent and the relevant goods, although the wider public would not. The Courts differed from the Assistant Commissioner in their view of the legal consequences of this finding. That is not a matter on which an Assistant Commissioner has particular expertise, as would be the case if the issue were whether one mark was confusingly similar to another or whether there was likely to be deception or confusion among consumers.
[5]       The application seeks to make something of what appears to be a passing comment in the Court of Appeal judgment where, saying that the evidence for the respondent was on its…

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: [2007] NZSC 52
Decision Date: 9 July 2007

CaseChat Overview and Summary

Aqua Technics Pool and Spa Centre NZ Limited (Applicant) sought leave to appeal against a decision of the Court of Appeal, which had ruled in favour of Aqua-Tech Limited (Respondent) in a dispute over the trade mark "Aqua-Tech". The Applicant argued that the Courts had failed to adequately consider the findings of the Assistant Commissioner of Trade Marks, who had determined that the Respondent's use of the trade mark was insufficient to establish proprietorship. The Applicant also contended that the Court of Appeal had erred in suggesting that the Applicant should have cross-examined the Respondent's witness before the Assistant Commissioner. The central issue before the Court was whether the Courts had erred in law by not giving adequate weight to the Assistant Commissioner's findings, and whether the Court of Appeal's comments on the need for cross-examination were an error of law. The Court held that the different view taken by the Courts was not simply a factual assessment, but rather a matter of legal consequence, which was not within the particular expertise of the Assistant Commissioner. The Court found that the Courts had adequately considered the criticisms of the evidence and had rejected them, and therefore the application for leave to appeal was dismissed. The Court did not consider that the Court of Appeal's comments on cross-examination were an error of law, as they were merely stating the obvious that it may be difficult to controvert assertions of fact by a witness without cross-examining the witness. The Court also found that none of the other issues raised in the application were of public or general importance. The Applicant's application for leave to appeal was dismissed with costs of $2,500 to the Respondent.

Orders