Frimp Ltd v Jan Barry Whitwam

This matter concerned an opposition by Frimp Ltd (the opponent) to the registration of a trade mark by Jan Barry Whitwam (the applicant). The opposition was brought under section 52 of the *Trade Marks Act 1995* (Cth). The opponent relied on grounds of opposition under sections 42, 43, 58, and 62(b) of the Act. The dispute centred on whether the opponent, a company formed by the members of the band "Herman's Hermits," owned the trade mark rights in the band's name, and whether the applicant's proposed registration would be contrary to law.

The primary legal issue before the delegate of the Registrar of Trade Marks was to determine if any of the grounds of opposition relied upon by Frimp Ltd had been established. Specifically, the delegate had to consider whether the applicant's trade mark application should be refused on the basis that it was contrary to law, as argued by the opponent. The delegate also had to decide whether the opponent had successfully demonstrated ownership of the trade mark rights in the band's name, a contention disputed by the applicant.

The delegate found that none of the grounds of opposition advanced by Frimp Ltd were established. The evidence did not satisfy the delegate that the opponent owned the trade mark rights in the name "Herman's Hermits" at the time of the application, nor that the registration of the applicant's trade mark would be contrary to any of the cited provisions of the Act. Consequently, the delegate decided that the trade mark application could proceed to registration one month from the date of the decision, unless an appeal was filed. The opponent was ordered to pay the applicant's costs.