Badger's Brook Pty Ltd v Domaine Jardin Pty Ltd

This matter concerned an application by Badger's Brook Pty Ltd (the applicant) for permission to serve further evidence in opposition proceedings against Domaine Jardin Pty Ltd (the opponent). The application was made under regulation 5.15 of the *Trade Mark Regulations 1995* (Cth).

The legal issue before the Hearings Officer was whether to grant the applicant permission to serve statutory declarations made by five individuals between September and October 2010. This required determining if the admission of this further evidence was appropriate in the circumstances, having regard to the criteria set out in regulation 5.15(3)(c) of the *Trade Mark Regulations 1995*. These criteria include whether the evidence could have been obtained earlier with reasonable diligence, whether it is likely to have an important effect on the outcome, and whether it appears credible.

The Hearings Officer noted that the applicant conceded the evidence could have been obtained earlier and that not all of it strictly addressed the opponent's evidence-in-reply. However, the applicant argued the evidence was pertinent to the central issue of whether the applicant had used the trade mark SPINIFEX in respect of wine earlier than the opponent. The opponent did not formally object to the application but requested a two-month period to respond if the evidence was admitted. The Hearings Officer, while acknowledging the applicant's "haphazard approach," decided to allow the application, considering the inconvenience to the opponent and the lack of urgency expressed by the opponent for a swift resolution. The Hearings Officer directed the opponent to respond to the further evidence no later than 2 February 2011, stating that any further application for an extension beyond that date would be viewed critically. No award of costs was made.