Brock Beauty Inc.

This decision concerns an opposition to the registration of a trade mark, brought by Hills Industries Limited against Bitek Pty Ltd. The dispute centres on the interpretation of section 44(3)(a) of the Trade Marks Act 1995 (Cth), which deals with the defence of honest concurrent use. The court was required to determine the relevant date for assessing honest concurrent use in trade mark oppositions.

The legal issue before the court was whether evidence of concurrent use of a trade mark occurring *after* the priority date of an application is relevant to the exercise of discretion under section 44(3)(a) of the Trade Marks Act 1995. This section allows for the registration of a trade mark even if it is deceptively similar to an earlier registered mark, provided there has been honest concurrent use.

The court, referencing previous decisions including *PB Foods v Malanda* and *Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd*, reasoned that the relevant date for assessing honest concurrent use is the priority date of the application for registration. The court held that section 44(3)(a) is only engaged if a finding under section 44(1) has been made, and the evidence relevant to section 44(1) is that which existed prior to the priority date. It would be inconsistent to allow discretion based on use occurring at a different time than that which establishes the ground for opposition. This approach was also supported by an older decision under the repealed Trade Marks Act 1955, *Trussardi SpA v Rundles Pty Ltd*, which confirmed that the relevant date for honest concurrent use is the date of application. Therefore, use of the mark after the priority date of 3 November 2014 was not relevant to the application of honest concurrent use in this matter.