In a recent Federal Court decision the Court had to consider the circumstances in which leave to appeal to the Full Federal Court would be granted to Food Channel Network Pty Ltd.

The Court applied a two step test in relation to the issue of whether leave to appeal should be granted, as follows:

  1. Whether there is sufficient doubt to warrant reconsideration of the matter by a Full Court; and
  2. Whether the denial of an opportunity to appeal would involve a substantial injustice supposing the decision of the primary Judge to have been wrong.

The sufficiency of the doubt and the extent of potential injustice involved must be balanced against each other.

In relation to paragraph (a), the Judge found that there was sufficient doubt in relation to the primary Judge’s decision to disallow the Applicant’s reliance at the hearing upon additional affidavit material, which related to ownership and use of the opposed FOOD CHANNEL trade mark. The additional affidavit had been prepared very shortly before the trial after Food Channel appointed lawyers to represent it at the hearing.

The Judge stated:

“Finally, I have doubts whether a sufficient (or any) allowance was made to accommodate the fact that, until the last minute before the trial, Channel was, in effect, a self-represented litigant.”

In addition, there was sufficient doubt in relation to the primary Judge’s assessment of whether the opposed FOOD CHANNEL trade mark was deceptively similar to earlier FOOD NETWORK trade marks owned by the Respondent Television Food Network, G.P.

In relation to paragraph (b), if leave was not granted, the trade mark application would be at an end as the opposition would be upheld. Therefore, the substantive rights would have been finally determined.

It was held that a small amount of doubt about the primary Judge’s decision would be sufficient given the substantial injustice that Food Channel would suffer if leave was refused.

On the basis of the foregoing, the Federal Court granted leave to Food Channel Network Pty Ltd to appeal the primary Judge’s decision delivered on 27 March 2009.