Bencom Srl v Peter Loccisano & M. Rooke

This decision concerns an opposition by Bencom Srl to the registration of a trade mark by Peter Loccisano and M. Rooke. The opposition was heard by Hearing Officer Terry Williams.

The primary legal issue before the Hearing Officer was whether the applicants, Mr Loccisano and Mr Rooke, had established sufficient use of their trade mark in Australia to justify its registration, or whether there was a lack of intention to use the mark as contemplated by section 59 of the relevant legislation. Bencom Srl contended that the evidence provided by the applicants was insufficient to demonstrate genuine use or intention to use the trade mark.

The Hearing Officer found that while the evidence presented by the applicants, particularly concerning the distinction between their business and a subsequent company, was not entirely clear and contained inconsistencies, it did not collectively rise to a level that would support an inference of a lack of intention to use the trade mark. The Hearing Officer noted that the applicants had provided evidence of use of the trade mark on t-shirts, although the quality of the evidence served on the opponent was defective. Applying the principles from *Aston v Harlee*, the Hearing Officer concluded that the evidentiary onus rested on Bencom Srl to establish grounds for opposition, and this onus had not been met.

Consequently, no ground of opposition was established, and the trade mark application was permitted to proceed to registration one month from the date of the decision, subject to any notice of appeal. Bencom Srl was ordered to pay the applicants' costs.