Munns Lawn Company Pty Ltd

The matter before the Hearing Officer, Iain Thompson, concerned an application by Munns Lawn Company Pty Ltd for the trade mark "MUNNS BUFFALO GREEN". The application was opposed by Products of Excellence Pty Ltd, which held a conflicting registration for the trade mark "MUNNS BUFFALO BOOSTER". The dispute centred on whether Munns Lawn Company Pty Ltd had continuously used its proposed trade mark prior to the priority date of the existing registration.

The primary legal issue for determination was whether Munns Lawn Company Pty Ltd had established continuous use of the trade mark "MUNNS BUFFALO GREEN" before the priority date of the conflicting registration held by Products of Excellence Pty Ltd. This required the court to assess the evidence presented regarding the adoption and implementation of the new trade mark.

The Hearing Officer considered statutory declarations from Dallas Julie Bratchell, General Manager of Munns Lawn Company Pty Ltd, and Peter John Everton, owner of Products of Excellence Pty Ltd. Ms Bratchell's declarations detailed a decision made in March 2009 to supply Bunnings Building Supplies exclusively with product under the mark "MUNNS BUFFALO BOOSTER", and to use "MUNNS BUFFALO GREEN" for all other customers. Evidence was presented of redesigning packaging, obtaining quotes for new packaging, placing orders for bags featuring the new mark in October 2009, and formally notifying distributors of the change in December 2009. Despite this evidence, the Hearing Officer was not satisfied that continuous use of the trade mark "MUNNS BUFFALO GREEN" had been established prior to the priority date of the conflicting registration.

Consequently, the Hearing Officer rejected Munns Lawn Company Pty Ltd's application for the trade mark "MUNNS BUFFALO GREEN" under subsection 44(1) of the relevant Act, as the applicant had not established the necessary continuous use.