Salvitis Pty Ltd v Registrar of Trade Marks [1907] HCA 4; (1907) 4 CLR 941 (18 March 1907)

HIGH COURT OF AUSTRALIA

Salvitis Proprietary Limited Appellants; and Registrar of Trade Marks Respondent.

H C of A

18 March 1907

Griffith C.J., Barton, O'Connor. Isaacs and Higgins JJ.

Mitchell K.C. (with him Mann), for the applicants.

Starke, for the Registrar of Trade Marks.

Mitchell K.C. in reply.

The judgment of the Court was delivered by

Griffith C.J.

All applications under the Trade Marks Act 1905 are really made under sec. 32, because, with regard to the applications referred to in secs. 8 and 9, they are expressly made subject to the provisions of sec. 32, except as otherwise provided. Upon an application to the Registrar for registration of a trade mark, his duty is to ascertain what the applicant's rights are. If it appears to him from any source that the applicant's rights may be qualified by secs. 8 or 9, or for any other reason, he is entitled to ask for reasonable information from the applicant. If the applicant refuses to give that information, he is not likely to receive much consideration from this Court. But when the information has been given, it is the duty of the Registrar to give the applicant that to which he is entitled. Whether the application is in one form or another does not matter much, especially as the rules provide for any necessary amendments being made. The point about the change of the company's name is a matter with which the Registrar must deal on the application, on ascertaining the actual facts. With this intimation of our opinion we refer the matter back to the Registrar to proceed with the application.

Application remitted.

Solicitors, for appellants, Waters & Crespin, Melbourne.

Solicitor, for Registrar, C. Powers, Crown Solicitor.