Bodiguard Pty Ltd v Draeger Safety UK Ltd

This matter concerned an application by Bodiguard Pty Ltd (the Applicant) to register a trade mark, which was opposed by Draeger Safety UK Ltd (the Opponent). The core of the dispute revolved around whether the Applicant had the requisite intention to use the trade mark at the time of filing its application for registration.

The legal issue before the court was to determine the burden of proof regarding the intention to use a trade mark at the time of application, and how evidence of subsequent actions could be used to infer that intention. Specifically, the court had to consider whether the act of applying for registration was sufficient prima facie evidence of intention to use, and under what circumstances this presumption could be rebutted.

The court referenced established legal principles, including the judgment in *Aston v Harlee Manufacturing Co*, which held that the act of applying for a trade mark is prima facie evidence of an intention to use it. The court noted that the onus generally rests on the opponent to prove the absence of such intention. However, it was also observed that subsequent events can shed light on the state of mind at an earlier date. In this instance, the Applicant's investment in research and development after the filing date was considered as evidence reflecting its continuing intention to use the trade mark, thereby supporting the inference that this intention existed at the time of application.