D & M Group Pty Ltd v Cairns Airport Pty Ltd

This matter concerned an opposition by D & M Group Pty Ltd (the opponent) to the registration of a trade mark by Cairns Airport Pty Ltd (the applicant). The dispute centred on the applicant's proposed registration of a trade mark for services in Class 39, specifically "rental of motor vehicles, motor vehicles hire services and passenger vehicle hire". The opponent contended that its own trade mark, "Cairns Airport Rentacars" (with a logo), which it had adopted and used in good faith since October 2007 for similar services, was either identical or deceptively similar to the applicant's mark, and that the applicant's mark was therefore not entitled to registration.

The primary legal issue before the Hearing Officer was whether the opponent had established any of its grounds of opposition to the applicant's trade mark application. The opponent bore the onus of proving its case on the balance of probabilities. The opponent's opposition was based on its claim of prior use of a substantially identical or deceptively similar trade mark in relation to identical or similar services, and that its adoption and use of its mark had been in good faith.

The Hearing Officer found that the opponent had not discharged the onus of establishing its grounds of opposition. While the opponent had provided evidence of its trade mark and its use since October 2007, and had applied to register its mark, this application had lapsed. The Hearing Officer noted the extensive history and current operations of Cairns Airport, which included various transport facilities and car rental services, but ultimately concluded that the opponent had failed to demonstrate that its opposition grounds were met. Consequently, the Hearing Officer decided that the applicant's trade mark could proceed to registration, subject to any appeal. The opponent was ordered to pay the applicant's costs.