In June 2000 Dutch company Stichting Lodestar applied to register the trade mark Wild Geese in respect of beers and other alcoholic beverages. Austin Nichols, proprietor of the registered trade mark Wild Turkey in respect of the same goods, opposed registration. The assistant commissioner held that there was no reasonable likelihood of deception or confusion between the two marks.
Austin Nichols appealed to the High Court. The High Court accepted that the assistant commissioner's decision had to be accorded weight, but that as an appeal court it must determine for itself whether there was a reasonable probability of confusion. The High Court held that there was a reasonable probability of confusion, and allowed the appeal.
The Court of Appeal took the view that the High Court had not appeared to give weight to the commissioner's opinion, and although it was entitled to reach its own view, it should give some deference to the decision of the assistant commissioner. The Court of Appeal placed weight upon the assistant commissioner's decision and then came to its own conclusion that there was no reasonable probability of confusion, thereby allowing the appeal.
The issue on appeal to the Supreme Court (Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103) was whether or not the appellate court must give deference to the court below, that is, whether the High Court must defer to the assessment of the assistant commissioner. The Supreme Court held that while the extent of the consideration given to the decision appealed from is a matter of judgment, the appeal court must form its own view.
Although the Court of Appeal criticized the approach of the High Court, it went on to form its own view of the similarity of the marks. As the Supreme Court could not find any error in the approach of the Court of Appeal to the similarity of the marks, it dismissed the appeal. Wild Geese is now eligible for registration despite the objections of Wild Turkey.
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| Kate Duckworth and Michael Cavanaugh |
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