Leo Pharmaceutical Products Ltd A/S v ACP Masthead Nominees Pty Limited

This matter came before the Hearing Officer as a delegate of the Registrar of Trade Marks, concerning an opposition by Leo Pharmaceutical Products Ltd A/S (the opponent) to an application by ACP Masthead Nominees Pty Limited (the applicant) for the registration of the trade mark CLEO as a defensive trade mark. The applicant sought to register CLEO in relation to vitamins and minerals, relying on its existing registration of CLEO for magazines. The opponent contended that the use of CLEO on vitamins and minerals would not be likely to indicate a connection between those goods and the applicant.

The primary legal issue before the Hearing Officer was whether the opponent had established its opposition under section 187(d) of the *Trade Marks Act 1995* (Cth), which requires that the use of the trade mark in relation to the goods for which defensive registration is sought will be taken to indicate a connection between those goods and the registered owner. The Hearing Officer also considered the weight to be given to evidence submitted by the opponent, specifically declarations from individuals who stated they would not assume a connection between the trade mark CLEO on vitamins or minerals and the applicant.

The Hearing Officer found that the opponent had not provided sufficient evidence to support its opposition. The declarations submitted by the opponent were given minimal weight, as they did not meet the usual standards for such evidence and appeared to be prepared by a third party rather than reflecting the freely expressed opinions of the declarants. Furthermore, the Hearing Officer noted that the onus was on the opponent to establish its opposition, particularly given that the application had already been accepted by the Registrar and section 33 of the Act presumes registrability unless grounds for rejection are established. The Hearing Officer concluded that the opponent had not established its grounds for opposition under section 44.

Consequently, the Hearing Officer decided to allow the application to proceed to registration, subject to the opponent notifying the Registrar of an appeal within one month. The Hearing Officer also ordered that costs follow the event, meaning the opponent was ordered to pay the applicant's costs.