The High Court has overturned the The Full Court's finding in Modena Trading Pty Ltd v Cantarella Bros Pty Ltd [2013] FCAFC 110.
Among other things it was held that: 'The evidence led by Modena to show that some traders in Australia used the expression "five star" on packaging of coffee and many traders used "five star" in respect of a range of services including restaurant and accommodation services also fell well short of proving that "cinque stelle" is understood in Australia by persons concerned with coffee products to be directly descriptive of the character or quality of such goods.
The court found that the question concerns 'the legitimate desire of other traders to use a word which is directly descriptive in respect of the same or similar goods'. "ORO" and "CINQUE STELLE" were not shown to 'convey a meaning or idea sufficiently tangible to anyone in Australia concerned with coffee goods, as to be words having a direct reference to the character or quality of the goods'.
The full decision is available on http://www.austlii.edu.au/au/cases/cth/HCA/2014/48.html
Among other things it was held that: 'The evidence led by Modena to show that some traders in Australia used the expression "five star" on packaging of coffee and many traders used "five star" in respect of a range of services including restaurant and accommodation services also fell well short of proving that "cinque stelle" is understood in Australia by persons concerned with coffee products to be directly descriptive of the character or quality of such goods.
The court found that the question concerns 'the legitimate desire of other traders to use a word which is directly descriptive in respect of the same or similar goods'. "ORO" and "CINQUE STELLE" were not shown to 'convey a meaning or idea sufficiently tangible to anyone in Australia concerned with coffee goods, as to be words having a direct reference to the character or quality of the goods'.
The full decision is available on http://www.austlii.edu.au/au/cases/cth/HCA/2014/48.html
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