Nova Entertainment Pty Ltd v Huawei Technologies Co., Ltd

This matter concerned an opposition filed by Nova Entertainment Pty Ltd (the Opponent) against an application by Huawei Technologies Co., Ltd (the Applicant) to register the trade mark NOVA. The dispute arose after the advertisement of the application's acceptance for registration, leading the Opponent to file a Notice of Intention to Oppose and subsequently a Statement of Grounds and Particulars. The opposition was heard by Nicholas Smith, a Hearing Officer acting as Delegate of the Registrar.

The court was required to determine whether the Applicant had established grounds for opposition under various sections of the Act, including ss 41, 42(b), 43, 44, 58, 59, and 60. A key issue was the Applicant's intention to use the trade mark NOVA in Australia in relation to goods covered by the application, specifically goods other than smartphones. This arose in the context of a Notice to Produce issued by the Registrar, seeking documents demonstrating such use, to which the Applicant failed to provide any responsive material.

The Hearing Officer found that the Opponent had established the ground of opposition under s 59 of the Act. This conclusion was reached because the Applicant failed to produce any evidence demonstrating an intention to use the trade mark NOVA in relation to the specified goods beyond smartphones, despite being requested to do so. The Applicant's inability to provide such documentation or a supporting declaration was considered significant. Furthermore, the Hearing Officer determined that any proposed amendment to the Applicant's specification of goods, such as restricting it to "smartphones," would either extend the Applicant's rights improperly or render the specification nonsensical, thus justifying a refusal to offer an amendment.

Consequently, the Hearing Officer refused to register the trade mark and awarded costs against the Applicant in favour of the Opponent, following the general rule that costs follow the event.