Ezy Auto 123 Pty Ltd v Ezyauto Pty Ltd

The proceeding involved Ezy Auto 123 Pty Ltd (the Applicant) and Ezyauto Pty Ltd (the Opponent) before the Federal Court of Australia. The dispute concerned the Opponent's opposition to the registration of the Applicant's trade mark. The Opponent's primary argument was that it was the first user and therefore the owner of the trade mark "EASY AUTO 123" in relation to car dealerships, including servicing and finance, in Western Australia.

The court was required to determine the ownership of the trade mark, specifically whether the Applicant was the first user and thus the owner, or if the Opponent held that status. A preliminary issue also arose regarding the admissibility of a further declaration filed by the Applicant out of time, which the court allowed. The court also permitted the Opponent to raise a new argument under section 58 of the relevant Act, which concerns opposition to trade mark registration on the grounds that the applicant is not the owner.

The court reasoned that in the absence of fraud, the owner of a trade mark is generally considered to be the first person to use it, or a substantially identical trade mark, in the course of trade in Australia in relation to the designated goods or services, or goods or services of the same kind. This principle, established in cases such as *Carnival Cruise Lines Inc v Sitmar Cruises Ltd* and *Seven Up Co v OT Ltd*, formed the basis for assessing the competing claims of ownership. The court allowed the Applicant's late-filed evidence to avoid prejudice and, in exchange, permitted the Opponent's new section 58 argument, noting the Opponent's lack of objection under these conditions.