Expression in Colour Painters Pty Ltd v Jamie Helyar and Amber Callaway

This matter concerned an opposition to the registration of a trade mark filed by Expression in Colour Painters Pty Ltd (the Opponent) against Jamie Helyar and Amber Callaway (the Applicants). The Opponent sought to prevent the registration of the trade mark, alleging it was not owned by the Applicants. The decision was made by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had established any of the grounds of opposition it had nominated, specifically under sections 42(b), 43, 58, 59, 60, 62(b), and 62A of the *Trade Marks Act 1995* (Cth). The delegate was required to determine if the Applicants were the true owners of the trade mark at the relevant date, which was the filing date of the application, 24 November 2020.

The delegate found that the Opponent had successfully established a ground of opposition under section 58 of the *Trade Marks Act 1995* (Cth). The Opponent provided a declaration from its director, which included evidence that the Opponent had commenced trading under the trade mark in April 2018, had developed a substantial reputation in it, and that the Applicants were related to the Opponent's business. Crucially, the Applicants filed no evidence in answer, leaving the Opponent's evidence uncontradicted. The delegate applied the ordinary civil standard of proof, on the balance of probabilities, and concluded that the Opponent had demonstrated that the Applicants were not the owners of the trade mark.

As the Opponent had successfully established a ground of opposition under section 58, the delegate deemed it unnecessary to consider the remaining grounds. Consequently, the delegate ordered that the registration of the trade mark be refused.