Opposition by Basic Trademark S.R.L to registration of trade mark application numbers 2003055 (class 25) and 2015036 (class 35) - CONTROL - in the name of Donna Kittle.

This matter concerned oppositions by Basic Trademark S.R.L. to the registration of two trade mark applications, numbers 2003055 (class 25) and 2015036 (class 35), both for the mark CONTROL, filed by Donna Kittle. The proceedings were heard by M. Cooper, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the grounds of opposition raised by Basic Trademark S.R.L. were established, specifically concerning section 44 of the *Trade Marks Act 1995* (Cth). This section requires the rejection of an application if the applicant's trade mark is substantially identical with, or deceptively similar to, another registered trade mark or an application for registration, and the priority dates are not earlier than that of the other mark. The delegate was required to determine if the trade marks CONTROL were substantially identical or deceptively similar to the opponent's registered mark KONTROLL, and if the goods and services were similar or closely related, considering the respective priority dates.

The delegate reasoned that the onus was on the opponent to establish the grounds of opposition on the balance of probabilities. In this instance, the opponent successfully established the section 44 ground of opposition for both trade mark applications. The delegate found that the priority dates for the applications by Ms. Kittle were not earlier than the priority date of the opponent's mark. Consequently, the delegate concluded that the registration of both trade marks must be refused.

As the opponent had established a ground of opposition, costs were awarded against the applicant. Costs were awarded in full for trade mark application 2003055, and reduced costs were awarded for trade mark application 2015036, following the approach in *Hume Industries (Malaysia) Berhad v James Hardie and Coy Pty Ltd*.