MS Marketing Inc. v EZ Imports Pty Ltd [2019] ATMO 159
(8 November 2019)
The Issue
Competing companies separately engaged the services of the same
Chinese contract manufacturer to produce a range of electric
wheelchairs, mobility scooters and associated parts and
accessories.
EZ Imports Pty Ltd ("EZ") sought to
register a trade mark in Australia which was successfully opposed
by MS Marketing, Inc ("MS") on the basis
of their superior claim to ownership of the relevant mark.
The Law
In Australia, rights in a trade mark can be established either
by use or by registration. Australia's Trade Marks Act
1995 supplements the common law where first
use of a trade mark establishes a qualified right to
continue that use. The right of use and to registration is limited
to the specific trade mark or a substantially
identical trade mark in relation to the same kind
of thing as the goods for which first use can be
established.
