Cook Islands Party v Cook Islands Party Tumu - Oral Judgment [2010] CKHC 55; OA07.10 (16 July 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
OA: 7/10

BETWEEN

THE COOK ISLANDS PARTY
(Applicant)

AND

THE COOK ISLANDS PARTY
TUMU
(First Respondent)

AND

THE REGISTRAR OF INCORPORATED SOCIETIES
(Second Respondent)

Hearing Date: 16 July 2010
Judgment Date: 16 July 2010

Court: Nicholson J
Counsel: T Rokoika for Applicant

Appearances: T. Haupini and T P A Henry for First Respondent
The Second Respondent in person.

ORAL JUDGMENT OF NICHOLSON J

[1] Last Tuesday the 13th of July, an application was filed in this Court by the Cook Islands Party seeking declaratory orders relating to the registration as an incorporated society of the First Respondent, The Cook Islands Party Tumu by the Registrar of Incorporated Societies the Second Respondent. The Applicant also filed an application for interim injunction requesting an urgent hearing of this interim injunction application.

[2] In support of those two applications an affidavit by Mark Brown the Vice President of the applicant was sworn and filed. In that, Mr Brown spoke of steps which the applicant have taken to advice the Second Respondent of it's Opposition to the Incorporation of the First Respondent with a name which resembled that of the applicant, but that it found that the application for registration had been granted and that the First Respondent Incorporated with the name on the 2nd of July this year.

[3] Annexed to his affidavit Mr Brown exhibited a copy of the Constitution of the Cook Islands Party as amended in October 2009. Also a resolution by the Cook Islands Party Executive Committee on the 9th of July to object to the registration of a new Party using the name Cook Islands Party Tumu or CIP Tumu as reported in the daily newspaper on Saturday the 3rd of July. And finally, a copy of the Constitution of the Cook Islands Party Tumu as registered on the 2nd of July.

[4] Throughout that Constitution the First Respondent is referred to as the Cook Islands Party Tumu Incorporated but the main section of its Constitution is confusing because it states "The name of the organisation shall be the Cook Islands Incorporated, and any references in this Constitution to the "Party" shall be construed as reference to the Cook Islands Party Tumu Incorporated". It appears to me that by oversight the words Party Tumu were omitted from the first line of that name.

[5] Because of the likely election later this year and the amount of present political activity, particularly in the selection of candidates for that election by the various parties concerned and the considerable publicity which is now been given to the pending election, there was clearly urgency in deciding this interim injunction application and hence I directed that I would hear it urgently at the conclusion of the jury trial on which I have been engaged this week.

[6] I directed service of the documents on the first and second respondent, and that the first and second Respondents be advised of the proposed hearing today. I understand they were.

[7] In reply, two documents were filed and served by the First Respondent. One was a notice of opposition signed by Joseph Haupini, Justice of the Peace. He is described in the Constitution of the Second Respondent as its President. The Second Opposition document was an affidavit sworn before Mr Haupini on the 15th of July by Richard Marsters who described himself as the Vice President of the First Respondent. In both documents it was the stated that the name of the new Party, the First Respondent, was CI Party Tumu, not CIP Tumu and it was submitted that that name CI Party Tumu was not misleading.

[8] This afternoon, when the Jury had retired to consider its verdict the hearing started. There were appearances by Miss Rokoika as counsel for the applicant, the Registrar of Incorporated Societies the Second Respondent appeared in person. Representing the First Respondent are Joseph Haupini, Justice of the Peace and Mr Tupui Ariki Henry who is not an Office Bearer of the First Respondent but is assisting it.

[9] I requested a memorandum from Miss Rokoika about relevant law which she duly provided. In light of the time of the day I ruled submissions from the three people present be limited to quarter of an hour each. I received submissions of just under quarter of an hour from Miss Rokoika, Mr Haupini said that he did not wish to make submissions but relied upon what would be said by the Party's advisor Mr Henry. Mr Henry made submissions for just on ten minutes. I don't know if I've mentioned it but the Second Respondent Mrs Henry-Anguna said that at this stage she took no active part in the proceedings but that situation may of course change if the matter proceeds to a substantive hearing. She has remained present throughout the hearing and is present when this judgment is being given.

[10] Having read the documents and on the basis of what I have heard in Court this afternoon, I am of the clear view that the grounds for making an Interim Injunction Order as stated in leading case of American Cyanamid exist. There is clearly a serious issue to be tried. Damages may not be an adequate remedy if an interim injunction is declined. The balance of convenience favours an urgent interim hearing and decision because of the impending national elections and the political activity which will take place between now and such election.

[11] The base law is contained in Section 12 of the Incorporated Societies Act 1994, which states. "No Society shall be registered under a name which is identical with that of another Society registered under this Act ... or so nearly resembles that name as to the calculated to deceive except where the other Society signifies its consent in such manner as the Registrar requires and the Registrar is satisfied that the registration of the Society by the proposed name would not be contrary to the public interest".

[12] In a decision delivered on the 11th of April 2005 by the then Chief Justice Greig under number OA 1/2005 between the Cook Islands Democratic Party Incorporated and the Democratic Party Tumu Incorporated as First Respondent and the Registrar of Incorporated Societies as Second Respondent, the Chief Justice stated that the wording of Section 12 which I have just quoted is almost identical to the provisions of New Zealand Legislation and that accordingly the principles stated by New Zealand Courts and also the common law relating to deception and passing off applied in the Cook Islands. Two leading cases which the Chief Justice referred to were South Pacific Airlines of New Zealand Limited and the Registrar of Companies [1964] N.Z.L.R 1 which was approved by the New Zealand Court of Appeal in Vidcom New Zealand Limited and Vidcom Systems Limited, [1987] NZCA 303; [1987] N.Z.L.R. 600.

[13] I agree that those principles apply in the Cook Islands as part of Cook Islands Law. In the South Pacific and Vidcom cases, the New Zealand Courts said that the test was whether there was a real likelihood of confusion from the use of similar names.

[14] In delivering the judgment of the Court of Appeal in the Vidcom case the President Sir Robin Cook said at page 605. "Irrespective of motives, a serious risk of confusion of the public or a section of the public, is well recognised as a head of undesirability when the registration of a name is an issue".

[15] In this case both the applicant and the First Respondent are political parties and are engaged or intend to engage in the election of the Cook Islands Parliament to be held later this year. Therefore, they have common objectives and common activities. I consider that the names are so similar that there is a real and serious risk that if the First Respondent uses the name the Cook Islands Party Tumu or the initials CIP by which the applicant is commonly known, even in conjunction with the word Tumu, that members of the public will be confused and believe that the two parties are the same or are in alliance.

[16] I also consider that the name of the first respondent as registered so nearly resembles the name of the applicant as to be calculated to deceive.

[17] The applicant has also taken issue with the use by the Second Respondent of the symbol of a growing coconut palm similar to that used by the applicant. It claims that the symbol used by the First Respondent is virtually identical except that the growing fond comes out of the other side, one facing to the left, the other facing to the right.

[18] Today, Mr Henry said that that growing coconut symbol was not a symbol used by the First Respondent as a logo and that its logo was a stylised map of the Cook Islands showing positions of the 15 Cook Islands indicated by stars. I noticed on the first page of the Constitution of the Cook Islands Party Tumu as registered with the Second Respondent on the 2nd of July there are two logos, the top one is indeed a symbolic representation of the 15 islands of the Cook Islands by stars but below is a growing coconut with the fond growing from the right hand side. It is very similar to the logo of the applicant. I believe that the use of such a closely similar symbol would be likely to seriously confuse members of the public and cause them to be mislead and to believe that the use of that logo was indeed by the applicant or an affiliated Party.

[19] So, because of the common area of activity of the parties and to avoid to such likely serious confusion, I am going to make restrictive injunction orders which will stand and will need to be observed until such time as they are changed by the Court. I consider that this warranted not just for the protection of the applicant but primarily to avoid confusion of members of the public as to whether the Second Respondent is in fact the applicant or is part of it or is affiliated to it. Potential voters are entitled to a degree of clarity and certainty on these matters. A Party establishing itself must take care that it uses names and logo which could not cause such confusion and must create and use distinctive names and logos accordingly. The Interim Orders which I'm about to make are some what different from those requested in the application for Interim Injunction but in my view are necessary to make the restriction on the use of particular words, initials and symbols quite clear to all concerned.

[20] I order that, the first respondent and all people are prohibited (except for reporting this proceeding) until further order of the Court from:-

(a) Using more than one of the three words "Cook Islands Party" in the first respondent's name or when referring to the first respondent, and

(b) Using more than one of the three letters "CIP" in the first respondent's name or when referring to the first respondent, and

(c) Using a growing coconut symbol as a logo of the first respondent.

[21] Those orders are very restrictive because they are designed to ensure that clarity is preserved for the protection of the public and the public may know precisely which party that is making certain statements and is promoting certain candidates. Also which party to vote for. Clarity is of paramount public importance.

[22] The applicant should seal a copy of those orders forthwith and serve a sealed copy on the First Respondent as soon as possible.

[23] I order that costs with relation to this application and orders made are reserved. If they are sought then it will be necessary for formal notice to be filed and served.

C M Nicholson J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.