Mountain H2O Pty Ltd v Australia's Finest Springvale Pty Ltd

Mountain H2O Pty Ltd opposed the registration of the trade mark application 832431, KIEWA VALLEY, filed by Australia's Finest Springwater Pty Ltd. The application sought registration for the word and device mark for goods and services including various types of water, and related retailing, wholesaling, delivery, transportation, and handling services. The opposition was heard by Hearing Officer Jock McDonagh, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether any of the grounds of opposition, which encompassed all grounds provided in the *Trade Marks Act 1995*, had been established by the opponent. The delegate was required to determine the case based on the material filed, as neither party requested to be heard.

The delegate reasoned that under the *Trade Marks Act 1995*, there is a presumption of registrability, and the onus rests on the opponent to establish the grounds of opposition. The delegate noted that the opponent had failed to provide any evidence in support of its opposition. Conversely, the applicant had provided evidence in answer, including statutory declarations and exhibits demonstrating use of the trade mark, which refuted grounds relating to inherent distinctiveness and distinctiveness acquired through use. Applying the principle that the Registrar must be positively satisfied that a ground for rejection exists, and finding no evidence to support any of the opponent's grounds, the delegate dismissed the opposition. The trade mark application was permitted to proceed to registration, subject to payment of outstanding fees and the outcome of any potential appeal.