Ellume Limited v OurMania IP Pty Ltd

This matter concerned an opposition to the registration of Trade Mark No. 2104502 by OurMania IP Pty Ltd (the Opponent) against Ellume Limited (the Applicant). The dispute arose from the Opponent's assertion that the Applicant's trade mark should not proceed to registration.

The Hearing Officer was required to determine whether the grounds of opposition, including those under sections 42(b), 44, 58, 60, and 62A of the *Trade Marks Act 1995* (Cth), had been established. Specifically, the court considered whether the Applicant's trade mark was too similar to existing registered marks for a subset of the goods for which registration was sought.

The Hearing Officer found that the ground of opposition under section 44 of the Act had been established in respect of a subset of the goods. However, the Applicant was provided with an opportunity to amend its application to remove these specific goods. Following this amendment, the Hearing Officer concluded that the section 44 ground was no longer established for the revised set of goods. As no other grounds of opposition were established, the trade mark was permitted to proceed to registration.

The Hearing Officer ordered that the trade mark application could proceed to registration not less than one month from the date of the decision, subject to any notice of appeal. Costs were awarded in favour of the Applicant for trade mark number 2118582, but for trade mark number 2104502, each party was to bear its own costs, reflecting a degree of success for both.