Food Channel Network Pty Ltd v Television Food Network G.P. [2010] FCA 703 (5 July 2010)

INTELLECTUAL PROPERTY – consideration of an appeal by the trade mark owner from a decision of the Registrar to remove a trade mark from the register on the ground of non-use – consideration of s 92(4)(b) of the Trade Marks Act 1995 (Cth) – consideration of whether the trade mark owner has used the mark in relation to the services for which it is registered – consideration of the meaning to be attributed to the services as specified

Greenwood J
FCN’s website use

17. One aspect of FCN’s contended use might be addressed at the outset. FCN contends that it took steps to upload program content to its website which, when examined, contains an animated or moving depiction of the trade mark showing food items depicted in the image on the Trade Mark Certificate rotating around the TV antenna and, in addition, a static image consistent with the graphic image contained in the Certificate. TVFN contends that any use by FCN of the trade mark in relation to the website is irrelevant having regard to the description of services in the Certificate of Registration. Objection is taken to evidence concerning use of the trade mark in relation to FCN’s website. I propose to admit into evidence all of the evidence concerning use of the trade mark in connection with FCN’s website and Ms Braad’s evidence on that question in response, for the purpose of addressing the first question of whether the evidence establishes use, and then determining whether that use constitutes use in relation to the services in respect of which the trade mark is registered. I also admit the evidence on the footing that evidence of whether FCN’s subject trade mark is contained within video images uploaded to the website within the relevant period may be regarded as evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding for the purposes of s 55(1) of the Evidence Act 1995 (Cth) on the issue of whether it is more likely than not that the subject trade mark was endorsed upon particular program content in the relevant period.