Cameron Arthur Nicol v Erento Gmbh

Cameron Arthur Nicol (the opponent) opposed the registration of an International Registration Designating Australia (IRDA) by Erento Gmbh (the applicant) for services in Class 35, specifically relating to the rental of advertising space on the internet. The matter was heard by Iain Thompson, a delegate of the Registrar of Trade Marks. The applicant elected not to appear at the hearing or rely on written submissions, despite being represented by Middletons.

The primary legal issue before the delegate was whether the applicant's proposed trade mark was substantially identical with, or deceptively similar to, the opponent's registered trade mark, "erento," registered on 14 June 2006 for services in Class 35: "Rental of advertising space on the Internet." This determination was to be made under section 44 of the *Trade Marks Act 1995* (Cth), which requires rejection of an application if the applicant's trade mark is substantially identical or deceptively similar to a registered trade mark for similar services, and the priority date of the applicant's mark is not earlier than that of the registered mark.

The delegate considered the evidence filed by both parties. The opponent's evidence confirmed the registration of his trade mark. The applicant's evidence, through Mr. Moller, described the applicant's services as operating a website that acts as a broker for hire companies to offer products and services for rental to consumers, with companies paying a fee to display their offerings and a commission on rentals conducted through the platform. The delegate found that the services offered by the applicant were similar to those for which the opponent's trade mark was registered. Given the applicant's failure to appear or make submissions, and the evidence presented by the opponent, the delegate concluded that the grounds of opposition under section 44 had been established.

Consequently, the delegate refused protection in respect of all services listed in the IRDA. The opponent was awarded costs on the official scale against the applicant.