Ferring BV v Pure Health Direct Pty Ltd

This matter concerned an opposition by Ferring BV to the trade mark application by Pure Health Direct Pty Ltd. The hearing was conducted by Iain Thompson, a delegate of the Registrar of Trade Marks. The opponent was represented by counsel, while the applicant, who did not appear at the hearing, relied on written submissions.

The primary legal issue before the delegate was whether the opponent had established any grounds for opposing the registration of the applicant's trade mark. The opponent's evidence focused on its own trade mark, MENOPUR, and its use in the biopharmaceutical field, particularly in reproductive health. The opponent sought to demonstrate that its prior use and registration of MENOPUR internationally, and its efforts to register the mark in Australia for fertility-stimulating hormones, constituted grounds for opposition.

The delegate considered the evidence presented, including statutory declarations detailing the global registration and use of the MENOPUR trade mark by Ferring BV and its associated companies. However, the delegate noted that the opponent's evidence established that the goods for which MENOPUR was intended to be sold in Australia were not formally on the market at the priority date of the opposed application. Crucially, the delegate found that the opponent had not established a ground of opposition.

Consequently, the delegate decided to allow the trade mark application to proceed to registration, subject to the usual one-month period for appeal. The delegate also awarded costs to the applicant, as they were successful in the proceedings, to be assessed on the official scale.