Karen Bazzan v Hitchley & Harrow Pty Ltd

This decision concerns an opposition filed by Hitchley & Harrow Pty Ltd (the Opponent) against a trade mark application by Karen Bazzan (the Applicant). The dispute arose from the Opponent's attempt to prevent the registration of the Applicant's trade mark. The matter was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks, who was tasked with deciding the opposition based on the written record.

The primary legal issue before the delegate was whether the Opponent had successfully established any of the grounds of opposition it had nominated, specifically under sections 44, 58A, and 60 of the relevant Act. The delegate was required to determine if the Opponent had discharged the onus of proof, which rests upon the Opponent in such proceedings, and to do so based on the ordinary civil standard of proof on the balance of probabilities. The relevant date for assessing the rights of the parties was established as 17 October 2016, the filing date of the trade mark application.

The delegate reasoned that the onus of proof in trade mark oppositions lies with the Opponent, and this must be discharged by adducing evidence and making submissions. In this instance, the Opponent had failed to provide any evidence or submissions in support of its opposition. Consequently, the delegate found that the Opponent had not discharged its onus and had therefore failed to establish the grounds of opposition under sections 58A and 60, as these grounds necessitate evidence of use or reputation. Furthermore, the delegate concluded that the Opponent had also failed to establish the ground of opposition under section 44.

As a result of the Opponent's failure to establish any of the nominated grounds, the delegate decided that the trade mark application could proceed to registration. The delegate also awarded costs against the Opponent in favour of the Applicant, applying the general rule that costs follow the event. Registration was to occur no less than one month from the date of the decision, unless a notice of appeal was served, in which case registration would be stayed pending the outcome of the appeal.