Benelli Q.J. Srl (‘the holder’) requested protection in Australia for…

16 Янв 2015 | Author: | Комментарии к записи Benelli Q.J. Srl (‘the holder’) requested protection in Australia for… отключены
Benelli Tornado Limited Edition

Benelli Q.J. Srl (‘the requested protection in Australia for the international registrations designating (‘IRDAs’): Application No: 1119891 Regn.

884498) Priority 18 January 2006 Goods: 12 Vehicles; apparatus for locomotion by with the exclusion of bicycles, air or motor bicycle, motorcycle, scooter, parts and accessories of products comprised in this Trade Mark: TORNADO TRE 1130 …………. Application No: (International Regn.

884503) Date: 18 January 2006 Class: 12 Vehicles; apparatus for by land with the exclusion of air or water; motor bicycle, motor scooter, parts and of said products comprised in class Trade Mark: NAKED TRE SPORT Following the IRDAs were accepted on 10 2007 and advertised as such in the Journal of Trade Marks on 27 2007. On 21 December 2007, Motor Company (‘the filed Notices of Opposition to the of protection to Australia.59: Applicant not to use trade mark The registration of a mark may be opposed on the ground the applicant does not intend: (a) to or authorise the use of, the trade mark in or (b) to assign the trade mark to a corporate for use by the body corporate in in relation to the goods and/or specified in the application.

The opponent’s sole argument is the holder’s website (not in but of which I am asked to inform shows it to be a manufacturer of motorbikes and scooters and so the opponent reasons the IRDAs were filed: a relevant intention to use the marks in to all of the goods specified in the applications. The applications include a claim to and “apparatus for locomotion by land” could be described as a claim is speculative, defensive and intended to an advantage over competitors.

The enjoys a rebuttable presumption it intends to use the trade marks the full breadth of the specifications.[6] In Corporation v. Americana International I summarized the cases which had rise to an inference that a mark applicant may not intend to use the such that the onus shift to it to prove otherwise. of the cases considered there the opponent.

I have not looked at the website and even if it was appropriate for me to do so, I do not that it would assist me The holder’s website is not a resource alone speaks for the company’s It is within my common general that the holder is an Italian of motor bikes.

Whilst I might be surprised to see the expand its business to car production, it surprise me no more than Porsche decided to make a 4WD SUV or Lamborghini decided to make in addition to agricultural tractors. I appreciate that terms NAKED and SPORT are apposite to styles of motor bike and that a designation like may be more likely to refer to engine capacity, it remains the commercial intentions for the trade are as likely to be concealed from me as are from the opponent.

The inclusion of terms does not preclude the use of the marks in relation to other goods, and therefore does not the presumption to the holder to establish its I find section 59 is not established. No ground of opposition has been I therefore extend protection to in respect of all the goods listed in the

The International Bureau will be of this decision as soon as after the appeal period has in accordance with Regulation

Ford Motor Company locations Français.

Sites de Ford Motor Company credit: Wikipedia)

Benelli Q. J. v Ford Motor Company

ATMO 9 (27 January 2011)

Updated: 7 February 2011

Benelli Q.J. Srl (‘the requested protection in Australia for the international registrations designating (‘IRDAs’):

Application No: 1119891 Regn.

884498)

Goods: 12  Vehicles; apparatus for locomotion by with the exclusion of bicycles, air or motor bicycle. motorcycle, scooter. parts and accessories of products comprised in this

………….

Application No: 1119892 Regn.

884503)

Priority 18 January 2006

Goods: 12  Vehicles; apparatus for locomotion by with the exclusion of bicycles, air or motor bicycle, motorcycle, scooter, parts and accessories of products comprised in this

Trade Mark: TORNADO TRE SPORT

Following examination, the were accepted on 10 September and advertised as such in the  Journal of Trade Marks  on 27 2007.

On 21 December 2007, Motor Company (‘the filed Notices of Opposition to the of protection to Australia.

The matter was set down for hearing but it went ahead, the opponent instead for a decision on the written

In this case the written comprises:

  • ➢ the opponent’s written dated 1 December 2010;
  • ➢ in support of the opposition, being declarations made by:

    Garen dated 18 June 2009;

    Katic dated 18 February

    Andrew Maclean dated 22 2010.

  • The holder did not file or written submissions.

    Notices of

    Opposition to protection of an IRDA is by paragraph 17A.29 of the Regulations to Trade Marks Act 1995 Act’). Regulation 17A.31 out the grounds for opposing an IRDA. are sections 39  to 44  of the Act (by virtue of and 17A.28(1)), and sections 58  to 61  of the Act (by of 17A.31(3)).

    Regulations 17A.28(2) and establish that where the section refers to an ‘application’, an is to be understood; and where an ‘applicant’ is to, the holder of the IRDA is to be understood.

    The of Opposition are in essentially identical and cite most grounds of available to the opponent under the however, in submissions the opponent its grounds of opposition to those 42(b) , 44 , 59. .

    Discussion

    In opposition proceedings the Registrar. the opponent bears the of establishing at least one ground of stated in the Notice of Opposition on the of probabilities. [1]

    For the sake of completeness, I that the grounds of opposition in the Notices but not pressed have not established.

    Identical etc. marks

    44.(1)  Subject to (3) and (4), an application for the registration of a mark ( applicant’s trade ) in respect of goods ( applicant’s ) must be rejected if:

    (a) the applicant’s mark is substantially identical or deceptively similar to:

    (i) a trade registered by another person in of similar goods or closely services; or

    (ii) a trade whose registration in respect of goods or closely related is being sought by another and

    (b) the priority date for the registration of the trade mark in respect of the goods is not earlier than the date for the registration of the other mark in respect of the similar or closely related services.

    Thus, in order to establish ground, the opponent must

    the existence of one or more trade registered or pending in the name of a other than the applicant;

    trade marks having priority date(s) than of the opposed trade mark;

    trade marks must be or pending in respect of goods are similar, or services which are related, to those in respect of the opposed application is made; and

    the trade mark must be identical or deceptively similar to the mark(s) on which the opponent

    For the purposes of section 44. the registrations on the opponent relies are:»>


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