AEG Ogden Pty Ltd

The matter before Hearing Officer Debrett Lyons concerned an application by AEG Ogden Pty Ltd for the registration of a trade mark. The dispute arose because the Hearing Officer found the applicant's trade mark to be deceptively similar to existing registered trade marks, thus presenting a ground for rejection under section 44 of the relevant Act.

The primary legal issue was whether the applicant could rely on section 44(3)(a) of the Act, which allows for the registration of an otherwise deceptively similar trade mark if it has been used concurrently and honestly with an earlier registered trade mark. This provision permits registration subject to any conditions or limitations deemed appropriate. The applicant sought to establish honest concurrent use, arguing that its mark had been used in relation to services including the provision of facilities for conventions, exhibitions, and conferences, excluding legal and judicial activities.

The Hearing Officer determined that the onus rested on the applicant to prove the conditions for honest concurrent use under section 44(3)(a) to the Registrar's satisfaction. While the applicant provided evidence of extensive use and promotion of its facilities, including contracting and planning for numerous events, the Hearing Officer found this evidence insufficient to satisfy the requirements of the section. Specifically, the evidence did not conclusively demonstrate the concurrency of use of the relevant trade marks in relation to the services as currently defined in the application.

Consequently, the Hearing Officer found that a ground for rejection existed under section 44 of the Act and, pursuant to section 33, refused to register the trade mark application. However, the Hearing Officer directed that if a notice of appeal was served within one month, the disposition of the application would be in accordance with the Court's direction or order.