No leave to appeal despite commissioner and lower courts reaching different decisions

New Zealand

In NV Sumatra Tobacco Trading Company v New Zealand Milk Brands Limited (SC 79/2011, September 22 2011), NV Sumatra Tobacco Trading Company has had its application for leave to appeal to the Supreme Court, the highest court in New Zealand, refused.

As with most applications for leave to the Supreme Court, this application has had a long and varied history. The matter started in 2005 with NV Sumatra’s application for the registration of the word mark ANGKOR in Class 30 of the Nice Classification for coffee, tea, cocoa, chocolate, artificial coffee flavourings for beverages, cereal, non-dairy creamer, biscuits and confectionery.

The assistant commissioner of trademarks allowed NV Sumatra’s application, despite an opposition by New Zealand’s largest dairy company, New Zealand Milk Brands Limited, who is responsible for the Anchor brand of milk and butter products, among others.

The High Court overturned the assistant commissioner’s decision on all grounds, ruling that ANGKOR and ANCHOR were sufficiently similar as to confuse or deceive a substantial number of persons.

NV Sumatra appealed to the Court of Appeal. Among others, NV Sumatra raised an argument not raised in the lower courts, which was that special circumstances applied. This was because of a separate revocation for non-use which was concluded while the appeals were on foot, whereby New Zealand Milk Brands’ registrations were narrowed. The Court of Appeal allowed the ANGKOR mark to proceed in respect of cereal, biscuits and confectionery, but dismissed the appeal in all other respects (for further details please see "Indonesian company partially successful against NZ dairy company").

NV Sumatra sought leave to appeal against that decision. In order to have leave allowed, NV Sumatra needed to demonstrate that the appeal involved a matter of general or public importance or a matter of general commercial significance.

The Supreme Court ruled that the appeal did not raise any particular point of law, despite the assistant commissioner, the High Court and the Court of Appeal all reaching different decisions. The application’s final resting place is that the ANGKOR mark is to be registered in respect of cereal, biscuits and confectionery.

Kate Duckworth, Baldwins Intellectual Property, Wellington

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