Foster?s Australia Limited v Steven Cromey

Foster's Australia Limited (the Opponent) opposed two trade mark applications by Steven Cromey (the Applicant) for the marks "My Kind of Crown" and "My Kind of Crown This Lager is". The opposition was heard by Iain Thompson, a Hearing Officer in the Trade Marks Hearings.

The primary legal issue before the Hearing Officer was whether the grounds of opposition, particularly those relating to the Applicant's intention to use the trade marks in Australia under section 59 of the *Trade Marks Act 1995* (Cth), had been established on the balance of probabilities. The Opponent also relied on other grounds of opposition, including the likelihood of confusion arising from its well-known "Crown Lager" brand.

The Hearing Officer noted that the Opponent bore the onus of establishing the grounds of opposition. The Opponent had provided statutory declarations as evidence, including a letter sent to the Applicant under section 59 of the Act, which detailed the Opponent's concerns about the Applicant's intention to use the trade marks. The Applicant had not filed any evidence in answer. The Hearing Officer found that the Opponent had established grounds for opposition, particularly concerning the Applicant's lack of intention to use the trade marks in Australia.

Consequently, the Hearing Officer refused to register both trade mark applications. The Opponent was successful in its opposition and was awarded its costs against the Applicant on the Official Scale.