Charity's fight for Red Nose name resumes

Sonny Bill Williams wearing a Cure Kids Red Nose. Photo / Richard Robinson

Cure Kids is taking a "once over lightly" approach to evidence as it fights a trademark battle in the High Court, the Australian charity which claims it owns the Red Nose Day image says.

The New Zealand charity was once again in the High Court at Auckland for the second half of a part-heard appeal against a decision to revoke its use of the Red Nose Day images and logos.

It is challenging an Intellectual Property Office of New Zealand ruling that gave the rights to the fundraising event to the National Sids Council of Australia, on the grounds of non-use by Cure Kids between 1997 and 2010.

The Australian charity says it holds the registered trademark to Red Nose Day and it would be confusing to the public for two separate charities in the Australasian region to use it.

Today, lawyer for the Sids Council Clive Elliott QC said there was no evidence to support the Cure Kids claim that it had been using the trademark in the year to June 2010 as it canvassed support for, and began planning to bring back, the Red Nose Day fundraiser.

Internal use during that period did not count, he said, and because they had not succeeded in securing sponsors before that date, the trademark could not be said to have been "on the market".

The law required "public and external use directed at the outside world", he argued, which represented "the fundamental underpinnings of what's referred to as trademark use".

"What they were doing here was securing a partner to engage in fundraising activities ... so in that sense it's an entirely private matter while they negotiate because no doubt those negotiations would be strictly private and confidential," Mr Elliott argued.

He added that "touting for potential business can't be said to have used the [trade]mark in the sense required".

Mr Elliott claimed there was no evidence that Cure Kids had used the Red Nose Day images and logo externally during that period, and questioned claims it had been using them for educational and training purposes.

"There's no evidence at all, even today, so it's really something that's been created to try to fill the rather large gap [in their argument]."

It was contrary to established law to hold a trademark for a period of years and not use it, which was classed as "covetous", Mr Elliott said.

The Sids Council had moved into the New Zealand market and began "filling that void" created by Cure Kids non-use of the Red Nose Day fundraiser, he said.

Cure Kids had "basically dropped the ball for too long and permitted someone else with a legitimate interest in Sids to support the local market with bereavement support and the like, and those interests need to be supported now".

During the first half of the hearing in September, Cure Kids claimed it had "special circumstances" which meant it was forced to suspend use of the Red Nose Day image and fundraiser event for more than a decade.

The hearing, before Justice Simon Moore, will continue tomorrow.

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TIMELINE:

Key Dates:

* 1989 to 1997 - Cure Kids ran Red Nose Day in New Zealand.

* 2009 - Cure Kids began work to bring the campaign back in 2010.

* June 29, 2010 - The National Sids Council of Australia filed five applications for trademark revocation with the Intellectual Property Office of New Zealand (Iponz).

* November 19, 2010 - Cure Kids ran Red Nose Day.

* March 14, 2014 - The Iponz case was heard. It revoked the use of the Red Nose Day images and logos by Cure Kids on the grounds of non-use between May 2007 and May 2010.

* September 16, 2014 - The first half of the Cure Kids appeal against the National Sids Council of Australia is heard at the High Court at Auckland.

* November 24 to 25, 2014 - The appeal hearing is continued.