Centennial Park Cemetery Authority v KSAMS Nominees Pty Ltd

This matter concerned an opposition by KSAMS Nominees Pty Ltd to a trade mark application by Centennial Park Cemetery Authority. The applicant sought to register the trade mark "CENTENNIAL PARK FLORIST" for services including the sale of flowers. The opponent, operating a florist shop directly opposite the applicant's cemetery, argued that it had been using the name "CENTENNIAL PARK FLORIST" since at least 1982, and that this use predated the applicant's trade mark application. The opponent contended that the applicant's proposed registration should be refused on the grounds of prior use.

The primary legal issue before the Hearing Officer was whether the opponent had established a ground of opposition under section 60 of the relevant Act, which concerns the registration of trade marks in relation to which a person has acquired rights through use. This required the Hearing Officer to determine if the opponent, or its predecessor in title, had acquired rights to use the trade mark "CENTENNIAL PARK FLORIST" in relation to the sale of flowers prior to the filing date of the applicant's trade mark application.

The Hearing Officer considered evidence including declarations and historical records. The evidence established that the opponent's florist shop had operated under the name "CENTENNIAL PARK FLORIST" since at least 1982, as evidenced by a Yellow Pages advertisement from that year and a prominent sign on the shop front that predated the opponent's purchase of the business in 2009. The Hearing Officer was satisfied on the balance of probabilities that the opponent's predecessor in title had acquired rights to use the trade mark "CENTENNIAL PARK FLORIST" for the sale of flowers prior to the applicant's trade mark application.

Accordingly, the Hearing Officer found that the opponent had met the onus of proof for the ground of opposition under section 60. The Hearing Officer therefore refused to register the trade mark application and awarded costs against the applicant.