Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd
(1959) 101 CLR 65233 ALJR 169
[1959] ALR 1248
(Judgment by: Taylor J)
Between: Farbenfabriken Bayer Aktiengesellschaft
And: Bayer Pharma Pty Ltd
Judges:
Dixon CJ
McTiernan J
Kitto J
Taylor JMenzies J
Windeyer J
Subject References:
Constitutional Law (Cth)
Judgment date: 23 July 1959
Judgment by:
Taylor J
The contention that s. 44 of the Trade Marks Act 1905-1948 (as continued in force by s. 5 of the Trade Marks Act 1955-1958) purports to confer upon this Court, and upon the Supreme Courts of the several States, functions which are outside the scope of Chap. III of the Commonwealth Constitution is, in my view, without substance and should be rejected. It seems to me clear that the question whether a so-called applicant has established a right to registration of his mark may properly be made the subject of the exercise of judicial power (cf. Jafferjee v. Scarlett (1937) 57 CLR, 115 , at p 126). Accordingly the provisions of s. 44 are justifiable as a law conferring original jurisdiction on the High Court in matters arising under a law made by the Parliament and, at the same time, investing State Courts with the like jurisdiction. (at p660)