Melissa Maree Spilsted v Marie Mongan

This matter concerned an opposition to the removal of a trade mark, brought by Melissa Maree Spilsted (the Opponent) against Marie Mongan (the Removal Applicant). The decision was made by a delegate of the Registrar at IP Australia.

The primary legal issue before the delegate was whether to admit the Removal Applicant's evidence in answer, which had been filed out of time and in a form that did not initially comply with the requirements of the Trade Marks Regulations 1995. The delegate also had to consider the substantive opposition to the removal of the trade mark, in circumstances where the Opponent had filed evidence and written submissions, but the Removal Applicant had not filed any evidence in answer or written submissions in response to the Opponent's evidence.

The delegate reasoned that the Removal Applicant had failed to comply with the Regulations regarding the filing of evidence. Despite opportunities and extensions being offered, the Removal Applicant did not properly file its evidence in answer within the prescribed timeframes. The delegate noted that the initial filing was not in the form of a statutory declaration, and subsequent attempts to rectify this were also out of time and ultimately refused. Consequently, the delegate determined that the Removal Applicant's evidence in answer could not be admitted. As the Removal Applicant had not filed any evidence in answer or submissions addressing the Opponent's evidence, the delegate proceeded to decide the substantive matter based on the evidence before them.

The delegate found that the Opponent had established grounds for the removal of the trade mark. The Removal Applicant's opposition was therefore dismissed, and the trade mark was removed from the Register.