Meaning of 'aggrieved person' under Section 88(1) clarified
In Health World Ltd v Shin-Sun Australia Pty Ltd ( HCA 13, April 21 2010), the High Court of Australia has clarified the meaning and scope of the term 'aggrieved person' for the purpose of establishing standing to apply for the removal of a registered trademark.
This appeal to the High Court was the culmination of a series of related proceedings concerning Health World Ltd’s registration for INNER HEALTH PLUS and Shin-Sun Australia Pty Ltd’s registration for HEALTHPLUS, each in Class 5 of the Nice Classification for pharmaceutical products, among other things. The judgment was confined to the single issue of whether Health World was an 'aggrieved person' for the purposes of Section 88(1) of the Trademarks Act 1995 (or a 'person aggrieved' under the former terms of Section 92(1)).
In allowing Health World’s appeal and ruling that it was an aggrieved person, the High Court took the opportunity to express a number of general statements of principle:
- The meaning of the word 'aggrieved' depends on the subject, scope and purpose of the act;
- The relevant purpose of Sections 88 and 92 is to ensure the integrity of the Register of Trademarks by providing processes for trademarks to be removed on certain grounds;
- There is a public interest in ensuring that the register is maintained as an accurate record of valid trademark registrations;
- However, once registered, it is also desirable to preserve stability in the grant and prevent doubts about validity from arising, unless they are raised by someone who has an interest in doing so; and
- The word 'aggrieved' should be "liberally construed" and it is not appropriate to define its meaning exhaustively.
In Kraft Foods Inc v Gaines Pet Foods Corporation ((1996) 65 FCR 104), the Full Court of the Federal Court of Australia had held that McLelland J, in Ritz Hotel Ltd v Charles of the Ritz Ltd ((1988) 15 NSWLR 158), had adopted a particular exhaustive test for ascertaining whether an applicant is aggrieved. One aspect of that test (according to the Federal Court) was that a person claiming to be aggrieved "must demonstrate, to use the language of McLelland J, at least a reasonable possibility of being 'appreciably disadvantaged in a legal or practical sense' by the trademark remaining on the register". In using the word 'must', the Full Court in Kraft was attributing to McLelland J, and adopting for itself, an exhaustive test. The High Court has now explained that McLelland J did not in fact lay down an exhaustive test in Ritz, and has also formally overruled Kraft in this respect.
In relation to Ritz, the High Court noted that, before enunciating the supposedly exhaustive test, McLelland J had said:
"Decisions of high authority appear to me to establish that the expression has no special or technical meaning and is to be liberally construed. It is sufficient for present purposes to hold that the expression would embrace any person having a real interest in having the register rectified… and thus would include any person who would be… appreciably disadvantaged in a legal or practical sense by the register remaining unrectified ..."
This indicates clearly that McLelland J was deciding not what the legislation necessitated, but what was sufficient to determine the precise issue presented for his decision in that case.
On the facts of the present case, Health World and Shin-Sun are rivals in selling their respective health products under marks that are objectively similar. They are in the same trade and they each trade in the class of goods in respect of which the challenged mark is registered. It is thus hard to think of a clearer case of a party being aggrieved.
Julian Gyngell, Kepdowrie Chambers, Wahroonga
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