Chris Staats v Click Loans Pty Ltd - [2018] ATMO 116

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re:Opposition by Chris Staats to registration of trade mark application 1744728 (36) - CLICKLOANS (FANCY) - in the name of Click Loans Pty Ltd.

Delegate:	Nicole Worth
Decision:	2018 ATMO 116 Trade Marks Act 1995 (Cth) – s 44 considered – trade mark deceptively similar – applicant owns prior registrations – provisions of s 44(3)(b) applied – trade mark may proceed to registration.

Background

This decision is pursuant to an opposition under s 52 of the Trade Marks Act 1995 (‘the Act’) by Chris Staats (‘the Opponent’) to registration of the trade mark the subject of application no. 1744728, detailed below.

Trade Mark	(‘the Trade Mark’)
Owner	Click Loans Pty Ltd (‘the Applicant’)
Filing Date	6 January 2016
Services	Class 36: Advice regarding credit; Consultations relating to credit; Credit (financing); Financial credit services; Advisory services relating to finance; Consultancy services relating to finance; Financial consultancy; Loans (financing); Advisory services relating to loan services; Loan services; Provision of loans.
Endorsements	Provisions of paragraph 44(3)(b) and/or Reg 4.15A(3)(b) applied.* Provisions of subsection s44(4) and/or Reg 4.15A(5) applied.

The trade mark application was examined and eventually accepted for possible registration under the provisions of ss 44(3)(b) and 44(4). Some of the prior trade marks which gave rise to the application of s 44(3)(b) are at issue here, discussed later in this decision. For now it is sufficient to say that it was determined other circumstances existed which made registration of the Trade Mark proper. The acceptance was advertised in the Australian Official Journal of Trade Marks on 4 July 2016.
On 19 July 2016 the Opponent filed a Notice of Intention to Oppose, followed on 19 August 2016 by a Statement of Grounds and Particulars (‘SGP’). The SGP particularises grounds of opposition corresponding to ss 44, 60, 58, 58A, 62A and 42 of the Act. The Applicant filed a Notice of Intention to Defend on 12 September 2016.
The Opponent has not filed any evidence in support of its opposition. The Applicant filed a declaration by Sarah Delpopolo, a solicitor of Axis Legal (Australia) Pty Ltd, dated 14 April 2017.
At the end of the period for filing evidence, the parties were informed of their right to be heard. Neither elected to avail themselves of this opportunity, and so that the Registrar may discharge her obligation under s 55 the matter has now been allocated to me, one of the Registrar’s delegates, for my decision based upon the written record comprised of the documents mentioned in the paragraphs above.

Onus and relevant date

The Opponent bears the onus of establishing at least one of its grounds of opposition. The relevant standard of proof is the ordinary civil standard of the balance of probabilities,[1] and the relevant date at which the rights of the parties are to be determined is 6 January 2016, the filing date of the application.[2]
[1] Pfizer Products Inc v Karam [2006] FCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ATMO 116
Decision Date: 19 July 2018

CaseChat Overview and Summary

In the matter of *Chris Staats v Click Loans Pty Ltd*, the applicant, Chris Staats, sought to set aside a default judgment entered against him by the respondent, Click Loans Pty Ltd. The dispute arose from an alleged loan agreement between the parties. The application was heard by Nicole Worth.

The primary legal issue before the court was whether the default judgment should be set aside. This required the court to consider whether the applicant had a meritorious defence to the claim and whether he had provided a sufficient explanation for his failure to file a defence within the prescribed time.

Her Honour considered the principles governing applications to set aside default judgments, which generally require a demonstration of a real or substantial prospect of success in defending the claim and an acceptable explanation for the delay. The court examined the evidence presented by the applicant regarding his defence and the reasons for his non-compliance with court rules.

The court ultimately dismissed the application to set aside the default judgment.

Orders