Nomads World Hotels Pty Ltd v Nomad Group Pty Ltd

This matter concerned an opposition by Nomads World Hotels Pty Ltd (the Opponent) against an application by Nomad Group Pty Ltd (the Applicant) to register a trade mark. The Opponent relied on several grounds of opposition, including s 44 of the *Trade Marks Act 1995* (Cth), alleging that the Applicant's proposed trade mark was deceptively similar to registered trade marks owned by the Opponent in respect of similar services. The hearing officer was required to determine whether any of the grounds of opposition were established.

The primary legal issue before the hearing officer was whether the Applicant's trade mark application should be rejected under s 44 of the *Trade Marks Act 1995* (Cth). This involved assessing whether the Applicant's services were similar to the Opponent's services, and whether the Applicant's trade mark was deceptively similar to the Opponent's registered trade mark, considering the relevant priority dates. The hearing officer also had to consider whether the exceptions provided in s 44(3) of the Act, relating to honest concurrent use or other circumstances, were applicable.

The hearing officer found that the Opponent bore the onus of establishing its grounds of opposition on the balance of probabilities, with the relevant date for determining the parties' rights being the "Relevant Date". The Opponent successfully established a ground of opposition under s 44, finding that the Applicant's services were similar to the Opponent's services, and that the Applicant's trade mark was deceptively similar to the Opponent's registered trade mark (specifically trade mark 622471). The hearing officer determined that the exception under s 44(3)(a) or (b) was not applicable in this instance. Consequently, the application for registration of the trade mark was refused, and costs were awarded against the Applicant.