Bickfords Trading Pty Ltd v BNB Management Pty Ltd

Bickfords Trading Pty Ltd opposed the registration of two trade mark applications by BNB Management Pty Ltd: application number 1989998 for "20 20 Distillery" and application number 2023510 for a figurative mark incorporating "TWENTY TWENTY 20 20 DISTILLERY". The oppositions were heard by Nicholas Barbey, Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether the grounds of opposition, specifically relating to section 41 of the *Trade Marks Act 1995* (Cth), had been established. This section concerns the distinctiveness of a trade mark. The Delegate was required to determine if the applicant's proposed marks were capable of distinguishing the applicant's goods and services from those of other persons, considering the evidence presented by both parties regarding their respective brands and their use in the market.

The Delegate reasoned that the ordinary civil standard of proof, based on the balance of probabilities, applied to the oppositions. The relevant date for assessing rights for the word mark was 17 February 2019, and for the logo mark, it was 17 July 2019. The Opponent, Bickfords Trading Pty Ltd, presented evidence of its "Twenty Third Street Distillery" brand, launched in 2016, which uses the number 23 prominently and is associated with various spirit products distributed nationally. The Applicant, BNB Management Pty Ltd, commenced its "20 20 Distillery" business in 2018, adopting the name as a play on "20 20 vision" and using it in social media campaigns from March 2019. Despite the applicant's evidence of use, the Delegate found that the Opponent had established the section 41 ground of opposition for both trade marks.

Consequently, the Delegate refused to register both trade mark application numbers 1989998 and 2023510. The Delegate also awarded costs against the Applicant in respect of application number 1989998, and reduced costs in respect of application number 2023510.