John Favaro John Housden v Michael Spiby

This matter concerned an application to register a trade mark, opposed by John Favaro and John Housden (the Opponents) against Michael Spiby (the Applicant). The dispute centred on the ownership and potential abandonment of the trade mark "The Badloves". The decision was made by the Registrar.

The primary legal issue before the Registrar was whether the Applicant was the owner of the trade mark at the relevant date, which was intrinsically linked to the question of whether the Opponents had abandoned the trade mark. The Registrar was required to determine if the grounds for opposition, specifically abandonment, had been established.

The Registrar's reasoning was informed by established principles regarding trade mark abandonment. Drawing on authorities such as *King Par, LLC v Brosnan Golf Pty Ltd* and *Settef SpA v RivOland Marble Co (Vic) Pty Ltd*, the Registrar noted that abandonment requires more than mere non-use; there must be an intention to abandon. The Registrar observed that Mr O’Prey, an original member of the group associated with the trade mark, was prevented from claiming joint ownership due to a Deed of Termination and Release. Conversely, this deed suggested that the remaining signatories, including Mr Spiby, Mr Housden, Mr Tabone, and Mr Featherstone, retained an entitlement. The Registrar inferred that Mr Favaro, as Mr O’Prey’s replacement, also held an entitlement. The departures of Messrs Tabone and Featherstone were noted but their impact on the ownership question was unclear. Ultimately, the Registrar found that the grounds for opposition, including abandonment, had been established.

The Registrar refused to register the trade mark. As the Applicant was the unsuccessful party, the Registrar ordered that costs be awarded against the Applicant at the Official Scale.