Le Vian Corporation v Bolton Gems Pty Ltd

This matter concerned a trade mark opposition heard by Jock McDonagh, Hearings Officer, at the Trade Marks Hearings. The Applicant, Le Vian Corporation, sought to register a trade mark, and the Opponent, Bolton Gems Pty Ltd, opposed this application. The dispute centred on whether certain evidence, filed by the Opponent both before and after the hearing, should be considered by the Hearings Officer in determining the opposition.

The legal issues before the Hearings Officer were whether to admit and consider evidence filed by the Opponent after the substantive hearing had commenced, and whether to admit further evidence filed by the Applicant in reply. Specifically, the Hearings Officer had to determine if the additional material sought to be considered by the Opponent, and the material sought by the Applicant, met the criteria for admission under Regulation 21.19 of the Regulations, and if so, whether it was reasonable to take such material into account.

The Hearings Officer reasoned that while the Opponent's evidence was relevant, it was not of sufficiently high probative value to significantly affect the outcome of the opposition. Citing authorities such as *Fed Square v Federation IP Pty Ltd* and *AgCare Biotech Pty Ltd v Crop Smart Pty Ltd*, the Hearings Officer noted that simply showing relevance or a possibility of failure without the evidence was insufficient; further circumstances making it reasonable to consider the material were required. The Hearings Officer found these further circumstances lacking. Consequently, none of the proffered material was taken into account. The Hearings Officer concluded that the Opponent had not established any grounds of opposition under section 62A of the Act.

The Hearings Officer ordered that the trade mark applications could proceed to registration one month from the date of the decision, unless an appeal was filed. Costs were awarded against the Opponent.