Supreme Court sinks AQUA TECH application

New Zealand

The Supreme Court of New Zealand has rejected Aqua Technics Pool and Spa Centre NZ Limited's (Aqua Technics) application for leave to appeal from a decision of the Court of Appeal ([2007] NZSC 52).

Aqua Technics applied to register AQUA TECH as a trademark for swimming and spa pools. Aqua-Tech Limited (Aqua-Tech) opposed on the basis that it had used the mark first. Aqua Technics argued that Aqua-Tech had not used the mark as the mark had not been used on the goods themselves, but on catalogues which accompanied the pools.

On opposition, the assistant commissioner agreed with Aqua Technics, but the High Court overturned this ruling. The Court of Appeal then upheld the High Court decision.

The issue on appeal to the Supreme Court was whether the use by Aqua-Tech had created a connection between Aqua-Tech and the relevant goods in the mind of the public. Aqua Technics argued that the appellate courts had not placed enough weight on the decision of the assistant commissioner.

The Supreme Court dismissed the appeal. It found that the issue on appeal was not one in which the assistant commissioner had particular expertise. Further, it held that the appellate courts had simply differed in their view of the legal consequences of the finding, which they were entitled to do.

Aqua Technics also sought to challenge the credibility of one of Aqua-Tech's witnesses. The Court of Appeal found that this was not a matter for an appeal and should have been dealt with at the opposition hearing by calling and cross-examining the witness. The Supreme Court held that the Court of Appeal was stating the obvious - namely, that it is difficult to controvert assertions of fact without cross-examination.

Therefore, the Supreme Court rejected Aqua Technics application for leave. Aqua Technics trademark application was thus refused and costs awarded to Aqua-Tech.

Kate Duckworth, Baldwins, Wellington

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