Foster's Wine Estates Limited v Greg John O'Keefe [Sec=Unclassified]

This matter concerned an opposition by Foster's Wine Estates Limited against an application by Greg John O’Keefe to register a trade mark. The opposition was heard by Hearing Officer Claudia Murray. The evidence filed by the opponent, Foster's Wine Estates Limited, included statutory declarations from employees and annexed technical articles, primarily aimed at demonstrating the importance of small bubble size in high-quality sparkling wines.

The central legal issue before the Hearing Officer was whether the opponent had discharged its onus to establish the grounds of opposition. Specifically, the Hearing Officer was required to determine if the evidence presented by Foster's Wine Estates Limited was sufficient to meet the required standard of proof, which is the balance of probabilities, to justify refusing the registration of the trade mark.

The Hearing Officer found that the opponent had not met its initial burden to shift the onus to the applicant. The evidence, which focused on the desirable characteristics of small bubbles in sparkling wine, was deemed insufficient to establish any of the grounds of opposition. Consequently, the Hearing Officer concluded that the opposition had not been established.

The Hearing Officer ordered that the trade mark application could proceed to registration one month from the date of the decision, unless a notice of appeal had been served on the Registrar, in which case registration would be stayed pending the outcome of the appeal. The opponent, Foster's Wine Estates Limited, was ordered to pay the costs of the proceedings.