Fitzpatrick v Lethborg Services Pty Ltd

This matter concerned an opposition by Bentley Systems, Incorporated to the registration of the trade mark "AssetWise" (application number 1970111) in class 42, filed by Lethborg Services Pty Ltd. The opposition was heard by Tracey Berger, Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether the registration of Lethborg Services Pty Ltd's trade mark should be opposed under section 60 of the *Trade Marks Act 1995* (Cth). This ground requires the opponent to demonstrate that another trade mark had acquired a reputation in Australia before the priority date of the opposed application, and that the use of the opposed trade mark would be likely to deceive or cause confusion due to that reputation.

The Hearing Officer found that the opponent had successfully established a reputation in its trade mark in Australia at the relevant date. Crucially, the evidence also indicated that Lethborg Services Pty Ltd acknowledged confusion between its use of the "AssetWise" trade mark and the opponent's use of the same mark in recent years. Based on this, the Hearing Officer concluded that the ground of opposition under section 60 was established.

Accordingly, the Hearing Officer refused to register trade mark application number 1970111. The refusal was to be recorded one month from the date of the decision, unless a notice of appeal was served on the Registrar of Trade Marks.