Arbormasters Pty Ltd v Arbormaster Training Inc

Arbormasters Pty Ltd (the applicant) sought to register the trade mark ARBORMASTER. Arbormaster Training Inc (the opponent) opposed this application, relying on its registered trade mark ARBORMASTER for similar goods and services. The hearing officer, acting as a delegate of the Registrar of Trade Marks, considered the arguments and evidence presented by both parties.

The primary legal issues before the hearing officer were whether the applicant had established prior continuous use of the ARBORMASTER trade mark in Australia, and whether the opponent's grounds of opposition under sections 44, 58, and 62(b) of the relevant Act had been successfully established. The opponent's registered trade mark, lodged on 8 February 2000, covered tree climbing equipment and training services.

The hearing officer found that the evidence provided by the applicant regarding prior continuous use was unclear and did not definitively establish use before the opponent's priority date of 8 February 2000. Specifically, the dates provided in the applicant's statutory declaration were ambiguous, with the earliest authoritative claim to use in Australia being February 1999. Consequently, the hearing officer concluded that the applicant had not established prior continuous use under section 44(4) of the Act. As a result, the opponent successfully established its grounds of opposition under sections 44, 58, and 62(b).

Accordingly, the hearing officer refused to register the applicant's trade mark application and ordered that the applicant pay the opponent's costs on the official scale.