BlackSquare Inc v CRACKA IP Pty Ltd

This matter concerned opposition proceedings before the Delegate of the Registrar of Trade Marks, Louise Tuohy. The Opponent, BlackSquare Inc, sought to oppose the registration of two trade marks, numbers 1927725 and 1941358, by the Applicant, CRACKA IP Pty Ltd. The Opponent alleged that the Applicant was not the owner of the trade marks, relying on section 58 of the *Trade Marks Act 1995* (Cth).

The primary legal issue before the Delegate was whether the Opponent had discharged its onus of establishing, on the balance of probabilities, that the Applicant was not the owner of the trade marks in question. The Opponent contended that it was the owner of a composite trade mark and the plain words "WINE COLLECTIVE", which it had used since 2009 overseas and late 2012 in Australia, and that these were substantially identical to the Opposed Trade Marks.

The Delegate considered the evidence filed by both parties. The Opponent's case relied on its asserted ownership and prior use of its trade marks in relation to various wine-related services. However, the Delegate found that the Opponent had not established a ground of opposition. Consequently, the Delegate decided that both trade mark applications could proceed to registration. The Delegate also awarded costs against the Opponent in favour of the Applicant.