Fairland Electric (China) Limited v Adrian Eric Morton

This matter concerned an opposition to the registration of a trade mark application by Fairland Electric (China) Limited (the applicant) brought by Adrian Eric Morton (the opponent). The hearing was conducted before Jock McDonagh, a delegate of the Registrar of Trade Marks, in Canberra. The dispute centred on the opponent's claim to have been the first to use the trade mark "fairland" in the course of trade in Australia.

The primary legal issue before the delegate was whether the opponent had established a ground of opposition based on prior use of the trade mark in Australia. This required the delegate to assess the evidence presented by both parties to determine who had demonstrated the first use of the "fairland" trade mark in connection with the relevant goods, namely air conditioners, in the Australian market.

The delegate considered various declarations from individuals associated with both the applicant and the opponent, including evidence of sales invoices, correspondence, and trade show attendance. The delegate accepted the evidence of sales of "fairland" branded air conditioning units to an Australian company in April 2004 as demonstrating the opponent's first use of the trade mark in the course of trade in Australia. Consequently, the delegate found that the opponent had established a ground of opposition.

As the opponent had successfully established a ground of opposition, the delegate refused to register the trade mark application. The delegate also awarded costs against the applicant in favour of the opponent.