Carole Anne Bunter v SecureView Australia Pty Ltd [2010] ATMO 86

Background

  1. In this matter SecureView Australia Pty Ltd of Oyster Bay, New South Wales, (‘the applicant’) has applied to register a trade mark under the Trade Marks Act 1995 (‘the Act’). Current details of the application appear below:
Application No: 1127005 Priority Date: 1 August 2006 Goods/Services: Class 6: Building materials of metal; fittings of metal for building; hardware of metal (small); insect screens of metal; hinges of metal; grilles of metal; goods of common metal not included in other classes; gates of metal gates of metal, for the protection of children; fittings of metal for windows; fittings of metal for building; doors of metal; door fittings, of metal; door frames of metal; door handles of metal; door panels of metal; door stops of metal; buildings (fittings of metal for -); bolts of metal; bolts of metal, and chemical fixatives (kits comprising -) for attaching or reinforcing; window frames of metal; goods of common metal not included in other classes. Class 37: Erection of security fencing; installation of security systems; installation of window coatings; installation of window films; installation of window frames; maintenance and servicing of security alarms; repair of security locks. Class 45: Providing information, including on-line, about security; advisory services relating to security; advisory services relating to the security of premises; monitoring of burglar and security alarms; provision of security information; provision of information relating to security. Trade Mark: SecureView (‘the opposed trade mark’)
  1. The application was examined in compliance with section 31 of the Act and the opposed trade mark was advertised as accepted for possible registration on 28 February 2008 in the Australian Official Journal of Trade Marks.
  2. On 26 May 2008, Carole Anne Bunter (‘the opponent’) served and filed Notice of Opposition (‘the Notice’) to the registration of the opposed trade mark. The Notice recites most of the grounds available under the Act and does refer to a ground under section 58 (under which, I consider, this matter is most conveniently and obviously decided). Section 58 was also amongst those grounds argued at the hearing which I conducted as a delegate of the Registrar of Trade Marks in Sydney on 20 July 2010. At the hearing the opponent relied on written submissions by P.A. Madigan of Counsel, instructed by  Hazan Hollander ; the applicant was represented by Ben Fitzpatrick of Counsel, instructed by Shelton IP, patent and trade mark attorneys.

The Evidence

  1. For the sake of brevity in this matter I will discuss only the evidence of the parties that is essential to my decision under the section 58 ground.
  2. The evidence in this matter comprises five statutory declarations. The opponent has served and filed the declaration of Carole Anne Bunter dated 25 November 2008 in support of the opposition. The applicant has served and filed the declarations of Philip Hendrick Van Der Woerd dated 19 November 2009 and the declarations of Samuel John Hallahan dated 23 September 2009, 5 November 2009, and 17 December 2009. The opponent has served and filed in reply the declaration of Carole Anne Bunter dated 9 March 2010. There are also documents in evidence supplied by the opponent as the result of a request by the applicant for production of documents however these are incidental to my decision and I will not discuss them.
  3. In her declaration, the opponent states that she has been making fly screens, window screens, screen doors and like products since approximately 1984, initially in partnership, then as a sole proprietor under the business name Buzzoff Flyscreens Security & Screening Systems. This business is, says the opponent, centered in the Newcastle and Lake Macquarie region of New South Wales, but additionally operates in Sydney and the Central Coast region of New South Wales, and sells through distributors across Australia.
  4. The opponent declares...
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