Constellation Australia Limited v Littore Family Wines Pty Ltd

Constellation Australia Limited opposed Littore Family Wines Pty Ltd's application to register the trade mark "EMU" for wine. The dispute concerned whether Littore Family Wines Pty Ltd had established prior use of a trade mark that was substantially identical or deceptively similar to the "EMU" trade mark, thereby entitling them to oppose the registration under section 44 of the *Trade Marks Act 1995* (Cth). The matter was heard by Bianca Irgang, a Hearing Officer of the Trade Marks Hearings.

The primary legal issue before the Hearing Officer was whether Littore Family Wines Pty Ltd had discharged the onus of proving that they had, prior to the filing date of the opposed trade mark application, used in Australia a trade mark that was substantially identical or deceptively similar to the "EMU" trade mark. This involved an assessment of the evidence presented by Littore Family Wines Pty Ltd regarding their use of an emu image on their wine labels.

The Hearing Officer found that while Littore Family Wines Pty Ltd had used an emu image on its "Critter" range of wines, specifically on a Rosé between 2005 and 2007, these sales did not involve the "EMU" trade mark under opposition. The evidence indicated that the opposed "EMU" trade mark was first documented as being used in 2009. Crucially, the Hearing Officer noted that the sales of the Rosé wine, while featuring an emu image, did not use the specific "EMU" trade mark that was the subject of the opposition, and therefore these prior uses were not relevant for the purposes of the section 44 opposition.

Consequently, the Hearing Officer determined that Littore Family Wines Pty Ltd had not met the onus of proof regarding the ground of opposition under section 44. Accordingly, the application to register the trade mark was refused, and Littore Family Wines Pty Ltd was ordered to pay the costs of Constellation Australia Limited.