Nani Babu Pty Ltd v Nautanki Pty Ltd

Nani Babu Pty Ltd (the Opponent) opposed the registration of trade mark 2107092 by Nautanki Pty Ltd (the Applicant). The Opponent asserted several grounds of opposition under the *Trade Marks Act 1995* (Cth), including sections 42(b), 44, 58, 58A, 60, 62(b), and 62A. The matter was heard by Benjamin Goldsworthy, Hearing Officer and Delegate of the Registrar of Trade Marks.

The court was required to determine whether any of the grounds of opposition relied upon by the Opponent were established. Specifically, the court considered the ground under section 44, which required an assessment of earlier trade marks, and the grounds under sections 42(b), 58, 58A, 60, 62(b), and 62A, which generally necessitate evidence to be proven.

The Hearing Officer found that the ground under section 44 failed because the earlier trade marks relied upon by the Opponent had either lapsed or been removed, and therefore provided no basis for opposition. For the remaining grounds, the Hearing Officer noted that most grounds of opposition require evidence to be established, and that the absence of evidence is fatal to such claims. As the Opponent filed no evidence in support of its opposition, all grounds were found to be unsubstantiated on the balance of probabilities.

Consequently, the opposition failed, and trade mark 2107092 was permitted to proceed to registration. The Hearing Officer awarded costs against the Opponent in favour of the Applicant, applying the usual rule that costs follow the event.