CCMSM ommercial Pty Ltd as trustee for the CCMSM Commercial Trust

The applicant, CCMSM Commercial Pty Ltd as trustee for the CCMSM Commercial Trust, sought to have its trade mark applications heard by the Registrar of Trade Marks. The dispute concerned grounds for rejection under section 44 of the *Trade Marks Act 1995* (Cth), which relates to identical or deceptively similar trade marks. The hearing was conducted by a delegate of the Registrar, Nicholas Smith.

The primary legal issue before the delegate was whether the applicant's trade mark applications should be rejected under section 44 of the Act. This required a fresh consideration of the grounds for rejection, independent of the examiner's initial decision. The delegate had to determine if the applicant's trade marks were substantially identical or deceptively similar to existing registered trade marks or applications for registration, and if the priority dates favoured the applicant. The delegate also considered whether exceptions under section 44(3) or 44(4) of the Act, such as honest concurrent use or continuous use prior to the relevant priority date, applied.

The delegate reasoned that a hearing under section 33(4) of the Act involves a fresh consideration of the grounds for rejection, not a review of the examiner's decision. The delegate applied section 44 of the Act, which mandates rejection if an applicant's trade mark is substantially identical or deceptively similar to another trade mark for similar or closely related goods or services, and the applicant's priority date is not earlier than the other trade mark's priority date. The delegate noted that the assessment must be made as of the filing date of the applicant's trade mark, though evidence of subsequent use could be relevant to illustrate factors present at that date. The delegate found that the applicant had failed to provide evidence of use prior to the relevant dates or any other circumstances that would justify registration.

Consequently, the delegate was satisfied that a ground for rejection under section 44 of the Act had been established for both trade mark applications. Therefore, the delegate rejected the applications for registration of the trade marks.