High Court sits to determine standing
In one of the few recently decided High Court cases dealing with trade mark issues, a unanimous decision was handed down in Health World Limited v Shin-Sun Australia Pty Ltd [2010] HCA 13 allowing an appeal relating to the meaning of ‘aggrieved’ under the Trade Marks Act 1995 (Cth) (the Act). The High Court found that Health World had the requisite standing to challenge Shin-Sun’s HEALTHPLUS trade mark and remitted the matter to the Full Federal Court for determination of the remaining issues.
Background
Health World Limited (Health World) has been manufacturing and supplying probiotic capsules under the name INNER HEALTH PLUS since 2000 and is the registered proprietor of the name INNER HEALTH PLUS (the Health World trade mark).
Since 2001 Shin-Sun Australia Pty Ltd (Shin-Sun) has manufactured and sold health supplements under the name HEALTH PLUS. Following a failed opposition by Health World Shin-Sun registered the trade mark HEALTH PLUS with IP Australia (the Shin-Sun trade mark).
At First Instance
Health World commenced proceedings in the Federal Court to have the Shin-Sun trade mark removed seeking cancellation under Section 88(1) of the Act, as well as non-use under Section 92 of the Act, both of which have the standing requirement that the applicant be an ‘aggrieved person’ (there was the additional requirement under Section 92 of the Act as it stood prior to the commencement of the Trade Marks Amendment Act 2006 (Cth) that the applicant for non-use be a ‘person aggrieved’)
At the same time, Shin-Sun brought their own non-use application under Section 92 of the Act against Health World.
The Trial Judge dismissed all three applications. A detailed discussion on this first instance case by the Australian Trade Mark Law Blog can be accessed HERE.
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