Opposition by Boss Fire and Safety Pty Ltd to registration of trade mark application 1812214 (9) – FYREBOX & Device - filed in the name of Fire Containment Pty Ltd.

This matter concerns an opposition by Boss Fire and Safety Pty Ltd to the registration of the trade mark application 1812214 (9) for FYREBOX & Device, filed by Fire Containment Pty Ltd. The opposition was heard by Debrett Lyons.

The legal issues before the court included grounds of opposition under sections 41, 42, 58, 59, 60, 62, and 62A of the Act, with primary reliance placed on sections 58, 62A, and 42(b). A significant focus of the proceedings was the ground of opposition under section 44, which was not relevant in a prior, related opposition. The court was required to determine these grounds based on evidence presented by both parties, including declarations from their respective directors and managers.

The court reasoned that the Opponent bore the onus of establishing at least one ground of opposition on the balance of probabilities, with the relevant time for assessment being the filing date of the application, 29 November 2016. The court noted that the Opponent was the applicant for a pending trade mark, no. 1737702, for the word mark FyreBox, filed in classes 17 and 19 for fire-related materials. This application had been deferred due to the potential impediment posed by application no. 1736748 for FIREBOX (word) under section 44. Despite the existence of related Federal Court proceedings concerning the Opponent's application, the court determined it was proper to proceed with the section 44 ground of opposition in the current proceedings, as directed by the Federal Court to continue the administration of the Act.