Ian Wymer v Industrial Fan Equipment Pty Ltd

This decision concerns an opposition by Ian Wymer to the trade mark application of Industrial Fan Equipment Pty Ltd (IFE). The dispute centred on whether IFE had abandoned its rights to the trade mark, and whether the succession in title to the trade mark was valid. The matter was heard by Terry Williams, a Hearing Officer at Trade Marks Hearings.

The Hearing Officer was required to determine two primary legal issues. Firstly, whether the opponent, Ian Wymer, had successfully demonstrated that IFE had abandoned its rights in the trade mark. Secondly, the Hearing Officer had to consider the validity of IFE's succession in title to the trade mark, and whether the long-standing reputation associated with the mark accrued to IFE.

In reaching his decision, the Hearing Officer found that the opponent had not convinced him of any abandonment of rights. While acknowledging that the succession in title was "badly documented," he considered it to be "tenable." Furthermore, he concluded that the long-standing reputation associated with the trade mark accrued to IFE, not to the opponent. Consequently, this ground of opposition was not established.

As no grounds of opposition were established, the Hearing Officer ordered that the trade mark application could proceed to registration one month from the date of the decision, subject to any appeal. In relation to costs, the Hearing Officer declined to award costs against the opponent, noting that the late introduction of additional evidence had disentitled IFE to such an award.