Trade Mark Decisions of the High Court of Australia

In E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15, Gallo relied on its trade mark registration for "BAREFOOT" covering wine to commence infringement proceedings against Lion Nathan for its use of "BAREFOOT RADLER" for beer. Lion Nathan counter-claimed for removal of Gallo's trade mark from the Register on the basis of non-use.

At first instance, Justice Flick held that Lion Nathan did not infringe Gallo's trade mark and that the trade mark should be removed from the Register as there was no "use" of the trade mark by Gallo merely because wine, by some unexplained circuitous route, ultimately arrived in Australia. On...