Glaxo Group Limited v Avexa Limited [Sec=Unclassified]

This matter concerned an opposition by Glaxo Group Limited (the opponent) to the registration of the trade mark "AVEXA" by Avexa Limited (the applicant) in relation to goods in Class 5. The opposition was brought on several grounds, including that the applicant did not intend to use the trade mark in respect of the goods claimed, pursuant to section 59 of the *Trade Marks Act 1995* (Cth).

The primary legal issue before the Hearing Officer was whether the opponent had established a prima facie case that the applicant lacked the requisite intention to use the trade mark "AVEXA" in relation to Class 5 goods at the time of filing the application. The opponent also raised issues under sections 44, 42, and 60 of the Act, but the Hearing Officer indicated that the determination of the section 59 ground would likely impact the consideration of these other grounds.

The Hearing Officer considered evidence from the opponent suggesting that at the time of filing, the applicant's direction had not been fully scoped and that the mark "AVEXA" would not be the name of a new product, nor would it be used for future pharmaceutical products. The opponent also pointed to the applicant's failure to apply for TGA listing for the name and its lack of evidence of use. However, the Hearing Officer found that the opponent had not established any ground of opposition. The Hearing Officer specifically noted that the existence of a previously registered trade mark, which the opponent had not opposed, was not taken into account in the decision.

The opposition was dismissed, and the application for the trade mark "AVEXA" was permitted to proceed to registration one month from the date of the decision, subject to any notification of an appeal. Costs were awarded against the opponent.