Florabella International LLC v Enzymatic Pty Ltd

Florabella International LLC ("the Opponent") opposed applications by Enzymatic Pty Ltd ("the Applicant") for registration of two trade marks, being applications 1768808 and 1774132. The Opponent contended that the Applicant had applied for the trade marks in bad faith and in breach of the Australian Consumer Law, and that the Opponent had established grounds for opposition under section 58 of the *Trade Marks Act 1995* (Cth). The matter proceeded before M. Cooper, as delegate of the Registrar.

The legal issues before the delegate were whether the Opponent had established any grounds for opposing the Applicant's trade mark applications, and if so, what decision should be made regarding the registration of those trade marks. Specifically, the delegate was required to determine if the Opponent had demonstrated that the Applicant's applications were made in bad faith or in contravention of Australian Consumer Law, and to consider the extent to which any grounds of opposition had been established.

The delegate found that the Opponent had established the ground of opposition under section 58 of the *Trade Marks Act 1995* (Cth). This finding was based on evidence demonstrating the Opponent's continuous use in Australia of the trade mark "SPEAKING ROSES" since 2009 through its licensees, who were granted rights to use the mark for personalised flowers. The delegate considered the Opponent's business model, licensing agreements, and evidence of market presence, including websites and invoices, which supported the claim of established reputation in Australia for the designated goods and services.

Accordingly, the delegate refused to register the trade mark applications 1768808 and 1774132. The refusal was to be recorded one month from the date of the decision, unless a notice of appeal was served, in which case the refusal would be stayed pending the outcome of the appeal. The delegate also awarded costs against the Applicant in favour of the Opponent, following the general rule that costs follow the event.