Cantine Ceci S.p.A. v Tasmanian Vintners Pty Ltd

This matter concerned an opposition by Cantine Ceci S.p.A. (the Opponent) to an application by Tasmanian Vintners Pty Ltd (the Applicant) to register a trade mark. The Opponent, an Italian wine producer, filed evidence including a declaration from its attorney, Paul Wyk, which detailed the Opponent's history and its production of Lambrusco wine. This evidence included documents, many in Italian, sales records indicating sales to Australia, and website screenshots showing the Opponent's mark on wine bottles. The opposition was heard by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had established any of the grounds of opposition it had pleaded. The Opponent initially relied on grounds under sections 42(b), 44, 60, and 62A of the *Trade Marks Act 1995* (Cth). However, the Opponent subsequently advised that it would no longer pursue the grounds under sections 42(b), 60, and 62A. Therefore, the sole remaining ground for determination was under section 44, which requires the Opponent to demonstrate that the Applicant's trade mark is substantially identical or deceptively similar to the Opponent's registered mark, that the goods or services are similar or closely related, and that the Applicant's mark has a priority date not earlier than that of the Opponent's mark. The relevant date for assessing the section 44 ground was 19 May 2017.

The delegate reasoned that the onus was on the Opponent to establish its grounds of opposition on the balance of probabilities. The Opponent's evidence, particularly the untranslated Italian documents and the limited nature of the sales records and website screenshots, was found to be insufficient to discharge this onus in relation to the section 44 ground. As the Opponent failed to establish any ground of opposition, the delegate decided that the Applicant's trade mark application could proceed to registration. The delegate also awarded costs against the Opponent, as is the general rule when a party fails to establish its case.