Jomoo Group Co Ltd v Nature Wine (Aust) Pty Ltd

This matter concerned a trade mark opposition filed by Jomoo Group Co Ltd (the Opponent) against an application by Nature Wine (Aust) Pty Ltd (the Applicant) for registration of a trade mark. The Opponent lodged a Notice of Intention to Oppose and subsequently a Statement of Grounds and Particulars, which was rectified to raise a ground of opposition under section 44 of the *Trade Marks Act 1995* (Cth). Neither party filed evidence, and the decision was made by a delegate of the Registrar of Trade Marks based on the written record.

The primary legal issue before the delegate was whether the Opponent had established the ground of opposition under section 44 of the Act. This section typically requires the Opponent to demonstrate that the registration of the Applicant's trade mark would be likely to cause confusion with an earlier trade mark owned by the Opponent, due to substantial identity or deceptive similarity between the marks and the goods or services for which they are registered. The delegate was required to determine this based on the materials before the Registrar, given that no evidence was adduced by either party.

The delegate reasoned that the onus of proof rested with the Opponent, and the standard of proof was the ordinary civil standard on the balance of probabilities. The date for determining the rights of the parties was the filing date of the Applicant's trade mark application, 4 December 2017. The delegate found that the Opponent's trade marks had not met a crucial requirement of section 44, without specifying which requirement or detailing the analysis of the second requirement. Consequently, the delegate concluded that the Opponent had failed to establish the ground of opposition under section 44, and therefore had failed to establish any grounds of opposition.

The delegate ordered that the Applicant's trade mark application, number 1891747, could proceed to registration not less than one month from the date of the decision, unless an appeal was lodged. If an appeal was filed, registration was to be deferred until the appeal was withdrawn or discontinued, or otherwise in accordance with any court direction.