FreshFood Holdings Pte Limited v Pablo Enterprise Pte. Ltd

FreshFood Holdings Pte Limited, as the Opponent, sought to oppose the registration of two trade mark applications by Pablo Enterprise Pte. Ltd. (the Applicant). The dispute concerned the Applicant's proposed registration of marks for goods and services, with the Opponent raising several grounds of opposition under the *Trade Marks Act 1995* (Cth). The matter was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The court was required to determine whether the grounds of opposition, including those under sections 42(b), 43, 44, 59, 60, and 62(b) of the Act, had been established. Specifically, the Opponent alleged that the Applicant had made false representations in material particulars in a declaration submitted during the examination process, which led to the acceptance of the applications. The Opponent also contended that the Applicant had not used the trade mark continuously in Australia for the specified goods and services, impacting the validity of the application under section 59.

The delegate found that while the Applicant's declaration contained representations that were false in material particulars, and thus potentially contravened section 62(b), this ground did not, of itself, provide a basis for revisiting the opposition under section 44. Crucially, the delegate considered the evidence regarding the use of the trade mark and, in light of the circumstances and the clear demarcation of goods and services, offered the Applicant an opportunity to amend its applications. Following the amendment to limit the trade marks to a revised set of goods and services, the delegate determined that the opposition under section 59 was no longer established for the amended applications.

Consequently, the delegate found that the Opponent had failed to establish any of the grounds of opposition. The trade mark applications were permitted to proceed to registration, subject to a one-month waiting period from the date of the decision, unless an appeal was filed. Given that each party had achieved a degree of success, no award of costs was made, and each party was directed to bear its own costs.