Deborah Brooks v Simone Peters

TRADE MARKS ACT 1995

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

Re:Opposition by Deborah Brooks to registration of trade mark application number 2292024 (class 44) – Mind + Gut - in the name of Simone Peters

Delegate:

Anne Makrigiorgos

Representation:

Opponent: Self represented

Applicant: By George Legal

Decision:

2024 ATMO 149

Trade Marks Act 1995 (Cth) – opposition under section 52 – sole ground of opposition under s 41 not established - trade mark to proceed to registration

Background

1. This decision concerns an opposition under s 52 of the Trade Marks Act 1995 (Cth)[1] by Deborah Brooks (‘Opponent’) to registration of the following trade mark:

Trade mark number:      2292024 (‘Application’)

Trade marks:  MIND + GUT (‘Trade Mark’)

Applicant:  Simone Peters (‘Applicant’)

Filing Date:  30 April 2021[2] (‘Relevant Date’)

Specification:  Class 44: Dietetic counselling services (medical); Gastroenterology (medical services); Medical care services; Hypnotherapy; Dietary and nutritional advice; Psychological or psychiatric counselling (‘Applicant’s Services’)

Endorsement:                  Evidence and/or other circumstances provided under subsection 41(4).

[1] Unless otherwise stated, each reference to a regulation below is a reference to a regulation in the Trade Marks Regulations 1995 (Cth) and each reference to a section is a reference to a section of the Trade Marks Act 1995 (Cth).

[2] The Application is a divisional of trade mark number 2173129.

1. The Trade Mark was examined and advertised as accepted for possible registration on 26 May 2023.

2. On 20 July 2023, the Opponent filed a Notice of Intention to Oppose the Application. On 19 August 2023, the Opponent filed a Statement of Grounds and Particulars (‘SGP’). The Applicant filed a Notice of Intention to Defend the opposition on 6 September 2023.

3. Thereafter the parties filed evidence in accordance with the Regulations. The Opponent filed the following Evidence in Support (‘EIS’):

Declaration of Deborah Brooks dated 28 December 2023, (‘Brooks’) with Appendix A (1) to (3) and B.

1. The Applicant filed the following Evidence in Answer (‘EIA’):

Declaration of Simone Peters dated 2 April 2024 with Annexures SP-1 to SP-30 (‘Peters’).

Declaration of Nik Sheng Ding (‘Ding’) dated 7 March 2024.

Declaration of Peter Raymond Gibbons (‘Gibbons’) dated 19 March 2024.

1. The Opponent filed the following Evidence in Reply (‘EIR’):

Second Declaration of Deborah Brooks dated 1 June 2024 (‘Brooks 2’).

1. Once time for filing evidence had ended, both parties were given the opportunity to either request an oral hearing or to file written submissions. While neither party elected to be heard, the Opponent requested a decision without a hearing. I have decided this matter based on the particulars set out in the SGP and the evidence of the parties.

Grounds and onus

1. The SGP nominates a ground of opposition under s 41.

2. The Opponent carries the burden of establishing the ground of opposition on the balance of probabilities.[3] The rights of the parties are assessed as at the Relevant Date.[4]

Summary of Evidence

[3] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58 [32].

[4] Telstra Corporation Limited…