(Red Nose) Day In Court

Thank you to Chris Torrero for sending us a link to this story! As many of you may know, in the UK, Red Nose Day is an annual telethon organised by Comic Relief to raise money for charity. Some people wear the red nose as a sign of their support of the charity. Similar initiatives take place in other parts of the world. 

The National Sids Council of Australia is an Australian charity which holds the registered trademark Red Nose Day in Australia. In 2010, it applied to the Intellectual Property Office of New Zealand (IPONZ) to revoke the Red Nose Day trademarks of Cure Kids, relying on continuous prolonged non-use of the mark. It also explained that having two separate charities in the Australasian region using the trade mark Red Nose Day would confuse the public. In 2011, the IPONZ ruled that Cure Kids had lost the right to use the image and Red Nose Day marks. Cure Kids has now decided to appeal this decision. 

During the appeal, counsel for Cure Kids, Julian Miles QC, argued that the New Zealand public associated Red Nose Day with their charity and believed it to be a New Zealand campaign. The National Sids Council of Australia, on the other hand, argued that the marks hadn’t been used in New Zealand since Red Nose Day was stopped in 1998. Clive Elliott QC explained: “It all comes down to whether there was fixed and present intention to use the mark.”

Mr Miles argued that the trade marks were not used because of ‘special circumstances’, but that public interest had prompted Cure Kids to launch the Red Nose campaign again in 2010. Cure Kids say that during the last three years of non-use, they were preparing to relaunch Red Nose Day. 

In the UK, non-use of a trade mark for an uninterrupted 5 years, without any proper reason, allows anyone to apply to have the trade mark revoked. S.66 of the NewZealand Trade Marks Act 2002 allows for a similar revocation after a period of 3 years only. S.66(2) of the Act specifies that revocation will not take place if there were special circumstances outside the control of the owner of the trade mark, which stopped him from making use of this mark. In order to successfully appeal against the non-use, Cure Kids will have to show that there were special circumstances stopping them from using the trade mark for such a prolonged amount of time (13 years).

The hearing is set to continue later this year, before Justice Simon Moore.