Hive Empire Pty Ltd v Phonepost Pty Ltd

Hive Empire Pty Ltd opposed the registration of the trade mark application GOFINDER (application number 1951331) in Class 9, filed by Phonepost Pty Ltd. The opposition was heard by Blake Knowles, a Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether Hive Empire Pty Ltd had established any of the grounds of opposition it nominated. This involved assessing the evidence filed by both parties to determine if the proposed trade mark was likely to deceive or cause confusion, and whether the opponent had demonstrated sufficient use and ownership of its own trade marks.

The Hearing Officer noted that the burden of proof rested on the opponent to establish its grounds of opposition on the balance of probabilities. While the opponent's evidence was primarily presented through a declaration by its legal representative, the Hearing Officer found it had some probative value as it contained specific information that could have been derived from company records. The opponent relied on its ownership and use of various trade marks containing the word "FINDER," including registrations numbered 1559528 and 1813169, which covered a broad range of goods and services. However, the Hearing Officer found no evidence to establish that the GOFINDER trade mark contained any connotation likely to deceive or cause confusion.

Consequently, Hive Empire Pty Ltd failed to establish any of the grounds of opposition. The Hearing Officer ordered that the trade mark application may proceed to registration, with a stay on registration pending any appeal. Costs were awarded against the opponent in accordance with the Regulations.