Anthony Fajwul v MetroLink Computers Pty Ltd

This matter concerned an opposition proceeding before Justice Heath Wilson. The applicant, Anthony Fajwul, sought to register a trade mark, and the respondent, MetroLink Computers Pty Ltd, opposed this registration. The core of the dispute revolved around whether MetroLink Computers Pty Ltd was the proprietor of the trade mark in question.

The court was required to determine whether the respondent had established proprietorship of the trade mark, particularly in circumstances where the use of the mark in Australia might have been slight. This involved considering whether a local reputation in the trade mark was a prerequisite for establishing ownership, or if evidence of minimal use, or even overseas use, could suffice to demonstrate proprietorship.

Justice Wilson applied established legal principles regarding trade mark proprietorship. The court referenced authorities such as *Moorgate Tobacco Co Ltd v Philip Morris Ltd* and *The Seven Up Co. v. O.T. Ltd.*, which support the proposition that even slight use of a mark in Australia can be sufficient to protect a foreign owner against appropriation. The court also considered *Colorado Group Limited v Strandbags Group Pty Limited*, which held that for an inherently distinctive mark, first use is generally sufficient to establish proprietorship, without necessarily requiring public recognition, unless the use is so inconsequential as to be *de minimis*. In this instance, the court found that the respondent had provided evidence of an offer to trade and actual utilisation of services under the trade mark by Australian customers, further supported by third-party corroboration, which satisfied the requirements for establishing proprietorship.