Mad Keen Pty Ltd v Jenkar Developments Pty Ltd

This matter concerned an opposition by Jenkar Developments Pty Ltd (the Opponent) to the registration of trade marks belonging to Mad Keen Pty Ltd (the Applicant), and cross-applications for removal of the Opponent's registered trade marks from the register. The court was required to determine whether the grounds of opposition were established and whether the grounds for removal of the Opponent's trade marks were made out.

The court was tasked with assessing whether the Opponent had demonstrated use of its registered trade marks in relation to the goods and services specified in its registrations, particularly in light of the removal applications. Furthermore, the court had to consider the grounds of opposition, some of which involved a comparison of the trade marks, to determine if they were established.

The court found that the Opponent had not established use of its trade marks in relation to certain goods and services, specifically excluding items not found in catalogues or reasonably inferred from the Opponent's activities. For instance, stubbie holders were not considered "portable cooling apparatus" as they merely slowed the warming process. The court also found that the Opponent had not shown it accepted payment for advertising services or sold advertising material in relation to its Class 35 services. Consequently, the opposition proceedings were not established.

The court directed that the Opponent's registrations be restricted by removing certain goods and services from their specifications. The opposition to the Applicant's trade mark applications was dismissed, and the applications were permitted to proceed to registration, subject to any appeals.