Bombala Council v Peter Wilkshire

This matter concerned opposition proceedings before a delegate of the Registrar of Trade Marks, Jock McDonagh. Bombala Council ("the opponent") filed notices of opposition against the registration of several trade marks applied for by Peter Wilkshire ("the applicant"). The applicant elected not to appear at the hearing, relying instead on written submissions, while the opponent was represented by counsel.

The primary legal issue before the delegate was whether the opponent had established, on the balance of probabilities, at least one of the grounds of opposition relied upon, which included sections 42, 43, 44, 58, 59, 60, and 62A of the *Trade Marks Act 1995*. The delegate also considered and dismissed other grounds of opposition not argued at the hearing for completeness.

The delegate's reasoning focused on the visual similarities between the applicant's proposed trade marks and a previously withdrawn application by the opponent, which had been withdrawn due to a dispute with Australian Geographic concerning a platypus depiction. The delegate found that the basic style of the trade marks was identical, including the arch, the words "PLATYPUS COUNTRY," and the depiction and arrangement of the platypus. Crucially, the delegate found in favour of the opponent on the ground of opposition under section 62A of the Act.

Consequently, the delegate refused to register the applicant's trade mark applications, specifically applications 1165437, 1165438, 1165439, 1165441, and 1165443. The delegate also awarded costs against the unsuccessful applicant, Peter Wilkshire, with specific directions for the weighting of costs for multiple oppositions.