Marion Nola Whiting v Australian Bowhunters Association Incorporated

Marion Nola Whiting opposed the registration of a trade mark application by the Australian Bowhunters Association Incorporated for a device known as the "bowman device". Ms Whiting's opposition was based on section 58 of the *Trade Marks Act 1995* (Cth), which allows opposition on the ground that the applicant is not the owner of the trade mark. The Registrar of Trade Marks heard the matter in Brisbane.

The central legal issue before the Registrar was to determine who was the owner of the bowman device at the time the Australian Bowhunters Association Incorporated filed its trade mark application. This required an examination of the principles of trade mark ownership, particularly as they relate to the first use of a mark in the course of trade and the concept of "authorship" of a mark. The Registrar also considered whether any use of the device by Ms Whiting or her late husband, Kevin Frederick Whiting, established a common law right to its exclusive use.

The Registrar reasoned that ownership of a trade mark, under the *Trade Marks Act 1995*, is generally vested in the person who first uses the mark in the course of trade in relation to the specified goods and services, or who is entitled to the exclusive use of the mark at common law. While Ms Whiting presented evidence suggesting her husband intended the bowman device to be used for the general promotion of bow hunting and by various organisations, including his own business, Kev Whiting Sports, the Registrar found no material evidence that Mr Whiting ever used the device to indicate the origin of goods or services in the course of trade. The Registrar noted that an intention to use a mark does not establish a common law right. Furthermore, the Registrar found that the use of the bowman device on a spine jig template, which was a supplement to *The Australian Bowhunter* magazine, did not demonstrate use by Mr Whiting as a trade mark to denote a trade source beyond the publication itself. Consequently, the Registrar concluded that Ms Whiting had not established that any person other than the applicant had a claim to common law rights in the mark prior to the application date.

The opposition was dismissed, and the Registrar directed that the trade mark application could proceed to registration. Ms Whiting was ordered to pay the Australian Bowhunters Association Incorporated's costs.