Karl David Turkovic v Triple Three Leisure Limited

This decision concerns an opposition by Triple Three Leisure Limited to the registration of a trade mark application by Karl David Turkovic. The trade mark, accepted for ladies', men's, and children's clothing, including shoes and headgear, was opposed on several grounds. The applicant did not serve evidence in answer or make submissions at the hearing.

The delegate was required to determine whether the applicant had a genuine intention to use the trade mark on his own goods, whether he was the proprietor of the mark, and whether the mark was distinctive of the applicant's goods. The delegate also considered grounds relating to copyright infringement and deception or confusion, though these were ultimately outside the Registrar's jurisdiction.

The delegate found that the applicant lacked a genuine intention to use the mark on his own goods, citing correspondence from the applicant suggesting a desire to act as an agent for the opponent and investigations indicating the applicant had no capacity to manufacture or sell the goods. This was considered to fall short of the "resolve or settled purpose" required for proposed use. Furthermore, the delegate determined the applicant was not the proprietor of the mark, as the opponent had used a substantially identical mark on their goods prior to the applicant's application, and the applicant's claim to proprietorship of an unused mark failed due to the lack of a settled intention to use it. The opposition succeeded on these grounds. However, the opposition failed on the ground of distinctiveness, as the mark was inherently adapted to distinguish the applicant's goods, and the opponent had not established sufficient reputation in Australia at the relevant time. Grounds relating to copyright infringement and deception were dismissed as being outside the Registrar's jurisdiction.

The opposition was successful on the grounds of lack of intention to use and lack of proprietorship, and the opponent was awarded costs.