Jewelscan Pty Ltd v Phenix Jewellery Pty Ltd

This matter concerned an objection raised by Jewelscan Pty Ltd (the Opponent) to a trade mark application by Phenix Jewellery Pty Ltd (the Applicant). The core of the dispute revolved around the admissibility of certain evidence presented by the Opponent, which the Applicant argued constituted inadmissible "tendency evidence" under the Evidence Act 1995 (Cth).

The legal issue before the Hearing Officer was whether the evidence detailing Mr. Beaumont's prior conduct in establishing a separate company providing similar services while still a director of the Applicant was admissible. The Applicant contended that this evidence lacked proper probative value regarding permission or ratification and that insufficient particulars had been provided, as would typically be required for tendency evidence in court proceedings.

The Hearing Officer determined that proceedings before the Registrar are distinct from court proceedings, and the Registrar is not strictly bound by the rules of evidence. Applying the principle that a decision-maker should not ignore relevant material, the Hearing Officer found that the evidence was admissible because it bore upon the question of whether the trade mark should be registered. As the Opponent had established one of its grounds of opposition, the Hearing Officer refused to register the Applicant's trade mark application and awarded costs to the Opponent for the filing and hearing fees.