Opposition by Bilyara Vineyards Pty Ltd to registration of trade mark application number 2032965 (33) – EAGLE HILL and device - in the name of Group Huge Limited

This matter concerned an opposition by Bilyara Vineyards Pty Ltd to the registration of the trade mark application number 2032965, comprising the words EAGLE HILL and a device, filed by Group Huge Limited. The opposition was heard by Louise Tuohy, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the applicant's trade mark should be refused registration under section 44 of the *Trade Marks Act 1995* (Cth). This section requires rejection of an application if the applicant's trade mark is substantially identical with, or deceptively similar to, a trade mark registered or sought to be registered by another person for similar or closely related goods or services, and the applicant's trade mark does not have an earlier priority date. The opponent also nominated grounds under sections 60 and 42(b) of the Act, but the delegate focused on section 44. The relevant date for determining the rights of the parties was 27 August 2019, the convention priority date of the application.

The delegate found that the opponent bore the onus of establishing at least one ground of opposition on the balance of probabilities. The opponent contended that the opposed mark was substantially identical with, or deceptively similar to, trade marks listed in Annexure A, which covered goods and services overlapping or closely related to those applied for. Although the applicant did not file any submissions, the opponent provided evidence, including a declaration from the parent company's Global Director of Intellectual Property. The delegate concluded that the opponent had successfully established a ground of opposition under section 44 of the Act.

Consequently, the delegate refused to register the trade mark application number 2032965. The delegate directed that the refusal be recorded one month from the date of the decision, subject to any appeal. The delegate also awarded costs against the applicant in favour of the opponent, following the usual principle that costs follow the event.