Danjaq LLC v Resource Capital Australia Pty Ltd

This matter concerned an application to register a trade mark, opposed by Danjaq LLC. The applicant, Resource Capital Australia Pty Ltd, had provided ASIC with updated registered office and principal place of business addresses in August 2001. However, when the opponent attempted to serve documents on the applicant at its notified address in August 2003, the courier was informed the applicant was no longer at that location, its telephone was disconnected, and no current listing existed. Further evidence presented by the applicant itself, including a letter sent from a new address, indicated a lack of awareness of the procedural requirements for notifying the Registrar of an address for service.

The primary legal issue before the court was whether the applicant intended to use the trade mark it sought to register, in circumstances where the applicant had failed to provide any evidence to rebut adverse inferences arising from the opponent's evidence. The court was required to determine if the available evidence, including ASIC records and the applicant's own correspondence, was sufficient to establish that the applicant did not intend to use the trade mark.

The court reasoned that adverse inferences could be drawn from the unrebutted evidence of the opponent, consistent with the principles established in *Jones v Dunkel*. The court noted that the applicant had not provided evidence to substantiate its claims or address the opponent's evidence, despite having the opportunity to do so. Relying on previous decisions such as *Phillip Morris Products SA v Sean Ngu* and *Sapient Australia Pty Ltd and Sapient Corporation v SAP Aktiengesellschaft*, the court held that where slight evidence suffices to shift the onus, and the applicant fails to respond, the inferences drawn from cogent and credible evidence should be accepted. The court was satisfied that the applicant did not intend to use the trade mark.

The court decided to refuse to register the trade mark, as the ground of opposition that the applicant did not intend to use the trade mark had been established.