Drug House of Australia (Asia) Pte Ltd v Drug House of Australia Pty Ltd

This decision concerns an application by Drug House of Australia (Asia) Pte Ltd for leave to serve and file further evidence in proceedings before the Hearings Officer of the Trade Marks Office. The opposing party is Drug House of Australia Pty Ltd. The dispute centres on the admissibility of this new evidence, which the applicant contends may influence the Registrar's discretion regarding the removal of trade marks from the Register.

The primary legal issue before the Hearings Officer was whether to grant the applicant leave to adduce the further evidence. This involved considering whether the evidence was relevant to the exercise of the Registrar's discretion, particularly concerning whether any recent use of the trade marks had been in good faith or solely to prevent their removal from the Register.

The Hearings Officer granted leave to serve and file the further evidence, albeit with some reluctance. The reasoning was that the evidence might arguably bear on the Registrar's discretion, and the assessment of its impact, particularly regarding good faith use, was best left to the delegate hearing the substantive matters. The Hearings Officer noted that the opposing party would undoubtedly make submissions on this aspect.

No order was made for the applicant's costs. The Hearings Officer found the applicant's conduct in organising its evidence to be either ill-advised, poorly organised, or dilatory, and the timing of the leave requests to be unfortunate. Consequently, an award of costs against the opponent, who had understandably objected to the applicant's behaviour, was deemed inappropriate.