On Friday 23 May 2008, the High Court rejected an application for leave to appeal the decision of the Full Federal Court in Colorado Group Limited v Strandbags Group Pty Limited [2007] FCAFC 184.
While leave was not granted, the Court suggested that there may be some uncertainty about the correctness of the Full Court’s approach to s 41(5). The applicant argued that the “other circumstances” refered to in s 41(5)(a)(iii) do not include use of the mark by other traders which would only be relevant under s 60.