Lord Howe Island Brewing Co. Pty Ltd v The Lord Howe Island Brewery Holdings Pty Ltd

This matter concerned an opposition filed by Lord Howe Island Brewing Co. Pty Ltd (the Opponent) against an application for registration of a trade mark by The Lord Howe Island Brewery Holdings Pty Ltd (the Applicant). The opposition was heard by a delegate of the Registrar of Trade Marks. The Opponent sought to oppose the registration on multiple grounds, including those under sections 42(b), 43, 44, 58, 58A, 60, 61, 62(b), and 62A of the relevant legislation.

The primary legal issue before the delegate was to determine the extent to which any of the grounds on which the application was opposed had been established, and consequently, whether to refuse or register the trade mark. This determination was to be made having regard to the written record and any oral submissions made by the parties. A significant factor in the proceedings was an earlier decision in a related matter where the Applicant had successfully opposed the registration of a trade mark owned by the Opponent. The parties were permitted to file additional submissions regarding the relevance of this earlier decision to the present opposition.

The delegate considered the evidence and submissions filed by both parties. The delegate noted that the Opponent was a brewing and distilling company established in May 2019 and that it relied on its own trade marks in support of its opposition. The delegate also acknowledged the earlier decision, which had been issued after the oral hearing of the present opposition, and treated the additional submissions concerning its relevance as part of the main submissions. The delegate's role was to decide the opposition by either refusing registration or registering the trade mark, with or without conditions, based on the established grounds of opposition.