Summary
This Full Court Decision concerned whether Bauer Consumer Media
Ltd and Bauer Media Pty Ltd (together, Bauer) had fairly put the
Trade Mark Applicant, Evergreen Television Pty Ltd (Evergreen) on
notice of Bauer's case on s 59(a) of the Trade Marks Act 1995.
The first instance judge held that Bauer had not done so; however,
a 2:1 majority of the Full Court held that Evergreen had been
fairly put on notice, and went on to find that Bauer had
established the s 59(a) ground of opposition to registration, with
the result that the Trade Mark at issue was refused
registration.
The decision exposes some of the difficulties in pleading in a
proceeding that, while constituting an appeal, is to be heard by
way of a de novo hearing, particularly in a case where a ground
argued below may be argued differently in the Federal Court.
