SYDNEY: The chief executive of Melbourne fashion group PAS has been accused of offering questionable evidence as a result of a statutory declaration made at a trademark hearing dispute in Sydney.
The case centred on a notice of objection lodged by the fashion group to the extension of a trademark registered by Denmark holding company Egon Pedersen under classes including clothing, footwear and headgear.
PAS chief Eric Morris, whose company was originally referred to as Pacific Apparel Solutions Group, launched its objection to the notice arguing that his group's use of the PAS trade mark dated back to 2004 - two years before Pedersen secured its Australian rights.
As part of support documentation for the PAS case, its legal representatives Middletons tabled evidence that stated the group was registered as a company by DB Capital Partners and commenced operations in 2004 under its former name.
In seeking to support its legal argument that the Pedersen trade mark was "substantially similar" or "deceptively similar" to its own and that PAS had a significant reputation in Australia at that time, Morris also tendered articles published by media organisations in early 2006 referring to the "PAS group" entity.
This was rejected by Pedersen's legal team, Cullen & Co, which argued the articles did not show use of any of the group's trademarks and most likely indicated "nothing more than the journalists concerned adopted the acronym as shorthands for the purposes of the articles".
The ordinary reader would not infer from such articles that [Morris' group] was using PAS as a trademark in relation to clothing, Cullen & Co said. PAS made it clear it does not use the PAS logo on any of its garments.
Further documentation from the Australian Securities and Investments Commission (ASIC) stated Morris' group was not incorporated until November 2005 and its original name was Pacific Apparel Consulting - and not Pacific Apparel Solutions Group as stated in Morris' evidence.
Cullen & Co also argued Morris' group did not change its name to PAS until August 2006 - three months after Pedersen applied for trade mark protection.
In dismissing PAS' opposition to the trade mark and awarding costs to Pedersen hearing officer Michael Kirov said he agreed with submissions made by Cullen & Co that many of Morris' declarations were "not only vague" but "they might on the face of it be said to be misleading".
"In my view there is merit in [Cullen & Co's] submissions that. . . Morris must be taken to have known, or have had ready access to, basic details concerning [PAS'] incorporation date and the dates it formally changed its name. If he did know these things, then he failed to disclose them. If he did not, then the reliability of his evidence is in any event open to question."
Speaking following the publication of the hearing officer's report, Middletons partner Tony Watson said he did not concur with the remarks made by Kirov.
"I believe the comment from the hearings officer was wrong. I don't understand it. The fact is that Petersen's filed no evidence in answer to our opposition until the morning of the hearing. They should have filed it months earlier. We objected to that being tendered however the examiner allowed them to rely on that evidence. For the hearings officer to make that comment, I don't think it was a fair or legitimate criticism. What mattered was that we had established that we did have a reputation as the PAS Group - which is true."
Watson said PAS Group was currently considering whether to appeal the decision.
He noted Pedersen had not yet used the PAS trade mark in Australia and if it had still not used it by 2011, his client would consider whether to request it be removed for non-use.