Microsoft Corporation v Matthew James Kruger

This matter concerned an opposition by Microsoft Corporation to the registration of four trade mark applications by Matthew James Kruger. The opposition was heard by Jock McDonagh, a Hearing Officer acting as a delegate of the Registrar of Trade Marks. The applicant was unrepresented at the hearing, and the only evidence before the Hearing Officer was filed by the opponent.

The primary legal issue before the Hearing Officer was whether the applicant's trade marks should be rejected pursuant to section 44 of the *Trade Marks Act 1995* (Cth). This required a determination of whether the applicant's marks were substantially identical with, or deceptively similar to, the opponent's registered trade mark, and whether the goods or services in respect of which the applicant sought registration were similar or closely related to those for which the opponent's trade mark was registered. The opponent's trade mark had an earlier priority date than the applicant's trade marks.

The Hearing Officer found that the opponent had established a ground of opposition under section 44. The opponent submitted that the goods for two of the applications were identical to those covered by the opponent's registration, and that the services for the other two applications were closely related to the opponent's registered goods. Given the opponent's success on this ground, the Hearing Officer acceded to the opponent's submission that no findings were necessary on any secondary grounds of opposition.

Consequently, the Hearing Officer refused to register the four trade mark applications. The Hearing Officer also awarded costs against the applicant in favour of the opponent, to be assessed according to the official scale.