Michael Harvey v Lion-Beer, Spirits & Wine Pty Ltd

This decision concerns an opposition by Lion-Beer, Spirits & Wine Pty Ltd (the Opponent) to the registration of a trade mark by Michael Harvey (the Applicant). The hearing was conducted by Alison Windsor, a Hearing Officer for Trade Marks and Designs. The Opponent pursued a single ground of opposition, relating to section 41 of the relevant Act, abandoning all other grounds initially raised. The onus was on the Opponent to establish this ground on the balance of probabilities as at the filing date of the opposed trade mark.

The primary legal issue before the court was whether the Applicant had established that the trade mark in question had acquired a secondary meaning, as contemplated by subsection 41(6) of the Act. This subsection is relevant when a trade mark is alleged to be descriptive or non-distinctive. The Opponent contended that the trade mark had not acquired the necessary secondary meaning to overcome objections under section 41.

The Hearing Officer found that the provisions of subsection 41(6) applied to the trade mark. Based on the evidence presented, the Hearing Officer was not satisfied that the Applicant had established the required secondary meaning. Consequently, the Opponent succeeded in establishing the ground of opposition.

As the ground of opposition under subsection 41(6) was established, the Hearing Officer refused to register trade mark application 1248610. The Opponent, having been successful, was awarded costs against the Applicant according to the Official scale.