L.F.P Inc v Supre Pty Ltd

This matter concerned an opposition by Supre Pty Ltd (the opponent) to the registration of the trade mark HUSTLER by L.F.P Inc. (the applicant) in class 16 for an entertainment magazine. The applicant did not appear or file submissions. The opponent relied on evidence demonstrating extensive use of the HUSTLER trade mark in Australia since 1996, not only for its magazine but also for clothing, headwear, pre-recorded videos, DVDs, and adult toys, sold both in Australia and via its website.

The court was required to determine whether the grounds of opposition raised by Supre Pty Ltd under sections 42(b), 43, 58, and 60 of the relevant Act were established. Specifically, the court considered whether the applicant was the owner of the trade mark, whether the registration would be likely to deceive or cause confusion, and whether the applicant had any intention to use the trade mark.

The court found that the opponent had successfully established its grounds of opposition under sections 58, 60, and 42(b) of the Act. The reasoning was based on the evidence presented by the opponent, which demonstrated that a substantial number of potential customers, upon encountering the applicant's HUSTLER trade mark, would likely be misled into believing a connection in the course of trade with the opponent.

Consequently, the court refused to register the trade mark HUSTLER under section 55 of the Act. The court also awarded costs against the applicant in favour of the opponent, following the general rule that costs are awarded against the unsuccessful party.