Gap (ITM) Inc v General Pants Co Pty Ltd

This matter concerned an opposition to the registration of trade mark application number 804301 by General Pants Co Pty Ltd (the opponent) against Gap (ITM) Inc (the applicant). The hearing was conducted by Jock McDonagh, a delegate of the Registrar, in Canberra on 12 November 2003. The opponent was represented by counsel, while the applicant did not appear at the hearing and had not filed written submissions.

The legal issues before the court included grounds of opposition under sections 41, 42, 44, 60, and 62 of the relevant Act. The opponent also raised preliminary submissions concerning presumptions, onus of proof, and inferences to be drawn from the applicant's failure to appear and provide adequate evidence. Specifically, the opponent argued that the applicant had failed to discharge the onus to respond to, explain, or remedy defects and omissions identified in its evidence during the examination phase, and that the applicant's decision not to appear indicated an inability to substantiate its claims.

The Hearing Officer considered the evidence presented by the opponent, which included trade mark registrations, examination files, and declarations detailing the history of the opponent's "gap" trade marks. The Hearing Officer noted the applicant's deliberate decision not to appear or provide further submissions, despite being represented by experienced trade mark attorneys. In light of the applicant's failure to discharge the onus of proof and the lack of any evidence or submissions in its favour, the Hearing Officer was not comfortably satisfied that the grounds of opposition had been made out.

Consequently, the opposition was successful, and the Hearing Officer refused to register trade mark application number 804301. The opponent was awarded costs against the applicant.