Graeme Norman Hyland & Helen Minette Hyland v Carol Redford

Graeme Norman Hyland and Helen Minette Hyland (the opponents) opposed the registration of trade mark application 796673, GINGIN OLIVES and device, filed by Carol Redford (the applicant) in class 29 for "olives, olive oil". The opposition was brought before a delegate of the Registrar of Trade Marks on the basis of a single ground under section 58 of the *Trade Marks Act 1995* (Cth), which permits opposition on the ground that the applicant is not the owner of the trade mark.

The legal issue before the delegate was whether the opponents had established that the applicant was not the owner of the trade mark. To succeed on this ground, the opponents were required to demonstrate prior use in Australia of a trade mark that was either identical or substantially identical to the applicant's mark, in respect of the same kind of goods or services. Ownership of a trade mark is determined by authorship and first use, with first use in Australia in respect of the relevant goods or services, or authorship and the making of an application for registration, whichever is the earlier.

The delegate considered the evidence filed by both parties. The opponents' evidence focused on their registration of "GINGIN OLIVES" as a business name and their olive growing activities. The applicant's evidence detailed the adoption of "GINGIN OLIVES" as part of her trade mark and her intentions to grow and market olives and olive oil. Applying the standard test for substantial identity, the delegate found that the words "GINGIN OLIVES" and the applicant's trade mark, which included a stylised device of a tree, were not substantially identical. The prominent visual difference introduced by the device meant the marks as a whole were very different.

As the trade marks were not found to be substantially identical, the delegate concluded that the opponents had failed to discharge the onus of proof under section 58. Consequently, the opposition was dismissed.