Nguyen Trong Thin v Posh Lifestyle Pte Pty Ltd

This matter concerned an opposition by Nguyen Trong Thin (the Opponent) to three Australian trade mark applications filed by Posh Lifestyle Pte Ltd (the Applicant). The Opponent, a Vietnamese chef operating a restaurant known as Pho Thin 13 Lo Duc since 1979, sought to oppose the registration of trade marks featuring the words "Second Word Mark" and an image contained in the "Device Mark". The proceedings were heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had established any of the grounds of opposition it had nominated. This involved considering the evidence filed by both parties, including a declaration made by the Opponent, and determining whether the grounds of opposition were sufficiently particularised and supported by evidence. The delegate also had to decide on the registration of the trade marks and the award of costs.

The delegate found that the Opponent had failed to establish the ground of opposition under section 62A of the relevant legislation. While the Opponent had filed a declaration, the delegate considered it unnecessary to formally disallow it as the Opponent had not established its grounds of opposition even with that evidence. The delegate noted that allegations of bad faith within the declaration were addressed separately. Consequently, the three trade mark applications were permitted to proceed to registration, subject to a one-month waiting period unless an appeal was filed. The Applicant was awarded costs in respect of the first trade mark application, with reduced costs awarded for the other two applications, applying the general rule that costs follow the event.