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Additional evidence could not be brought forward on appeal from Controller of Patents without good reason
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Supreme Court dismisses appeal from Court of Appeal, and affirms ruling that a party should not be entitled to bring forward additional evidence before the High Court on a statutory appeal from a decision of the Controller of Patents to refuse to register a trade mark, where one of the reasons for refusal was the failure to provide sufficient evidence of the use of the mark in Ireland, on the grounds that: (a) although the appeal was a full rehearing, it was expressed to be on the same materials as were before the Controller of Patents; (b) although the legislation provided for leave to bring forward additional material, this should be restricted to material that had not been available at the time of the original hearing; and (c) the original hearing should be considered final, and an appeal was not an opportunity to rectify earlier omissions.
Irvine J (nem diss): Application to introduce new evidence on appeal - appeal to High Court from decision of Controller of Patents - whether new evidence might be admitted - trademark dispute - use of trademark 'Diesel' - application in 1992 to register trademark - objection by other party - further application in 1996 - hearing in 2012 - refusal by Controller of application for registration - failure to provide sufficient evidence concerning sale of product in Ireland - appeal to High Court - application for special leave to bring forward further material on appeal - s.26(9) of the 1963 Act - advertising materials - circulation figures - invoices - affidavits in reply - decision by High Court admitting certain materials - appropriate test - scope of appeal - whether a 'full rehearing' - whether evidence could have been filed earlier - explanation for failure to file - appeal to Court of Appeal - leave to appeal to Supreme Court - test to be applied - statutory provisions underpinning the appeal - policy objectives - case law - statutory provisions for bringing forward new material - O. 94, r. 48 of the Rules of the Superior Courts - appeal by way of rehearing.
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