Opposition by AMS GROUP 1 PTY LIMITED and AMS GROUP 2 PTY LIMITED to registration of trade mark application 1942896 (20) – DART – in the name of Krost Business Furniture Centre Pty Ltd

This matter concerned an opposition by AMS GROUP 1 PTY LIMITED and AMS GROUP 2 PTY LIMITED (the Opponent) to the registration of trade mark application number 1942896, for the mark "DART", in the name of Krost Business Furniture Centre Pty Ltd (the Applicant). The opposition was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether any of the grounds of opposition nominated by the Opponent under sections 42(b), 44, 58, 58A, 60, and 62A of the *Trade Marks Act 1995* (Cth) had been established. The Opponent was required to prove at least one of these grounds on the balance of probabilities, with the relevant date for determining the rights of the parties being the filing date of the application, 23 July 2018.

The delegate noted that the Opponent had failed to file any evidence in support of its opposition. The Applicant, however, had filed evidence, including a declaration from its director, which appeared to address the prior use requirements for section 44. The delegate found that the Applicant had established the provisions of section 44(4) of the Act, thereby failing the ground of opposition under section 44. As no evidence was filed by the Opponent, and the Applicant had satisfied the requirements of section 44(4), none of the nominated grounds of opposition were established.

Consequently, the delegate ordered that trade mark application number 1942896 may proceed to registration, subject to the usual one-month period unless a notice of appeal is filed. The Opponent was ordered to pay the Applicant's costs.