Agricultural and Processed Food Products Export Development Authority v Muhammad Munsha

The Agricultural and Processed Food Products Export Development Authority (the opponent) opposed the application by Muhammad Munsha (the applicant) to register the trade mark BASMA for rice. The matter was heard by a delegate of the Registrar of Trade Marks. The opponent, an autonomous statutory authority sponsored by the Indian government, sought to prevent the misuse of the term "Basmati" and had appointed a watching agency to monitor attempts to register it as a trade mark.

The primary legal issue before the delegate was whether the applicant was the owner of the trade mark BASMA, specifically in relation to the ground of opposition under section 58 of the relevant Act, which concerns the applicant's entitlement to the mark. This required the delegate to determine if the trade mark BASMA had been used in Australia prior to the applicant's priority date of 2 October 2002, and if so, by whom.

The delegate reasoned that the evidence demonstrated that Basma Rice Mills (Pvt) Ltd of Pakistan was exporting Basmati rice under the trade mark BASMA to Australia, with an Australian importer packing and distributing the product. Relying on established legal principles, including those from *In Re The Registered Trade Mark "Yanx"* and *Estex Clothing Manufacturers Pty Limited v Ellis and Goldstein Limited*, the delegate found that the projection of goods bearing the trade mark into the Australian market, through sales to Australian retailers and the preparation of goods for export to Australia, constituted use of the mark in Australia by Basma Rice Mills (Pvt) Ltd. This use preceded the applicant's priority date, meaning the applicant was not the owner of the trade mark.

Consequently, the opposition was successful on the ground of section 58. The delegate refused to register trade mark number 929133 and awarded costs to the opponent.