Opposition by Cumulo Group Pty Ltd to registration of trade mark application 1985830 (21, 35) – RTRNA – in the name of RTRNA PTY LTD

This matter concerned an opposition by Cumulo Group Pty Ltd (the Opponent) to the registration of trade mark application number 1985830, in the name of RTRNA PTY LTD (the Applicant). The opposition was brought before a delegate of the Registrar of Trade Marks, Nicholas Smith. The dispute arose following the advertisement of the application's acceptance for registration, with the Opponent filing a Statement of Grounds and Particulars alleging grounds under sections 44, 58, 60, and 62A of the *Trade Marks Act 1995* (Cth). The Applicant filed a Notice of Intention to Defend, and the matter proceeded to a decision without a hearing based on the written record.

The legal issues before the delegate were whether any of the grounds of opposition nominated by the Opponent had been established. Specifically, the delegate was required to determine if the Applicant's trade mark application infringed upon the Opponent's rights under sections 44 (identical or deceptively similar trade marks), 58 (non-use), 60 (well-known trade marks), and 62A (deceptive or misleading applications) of the Act. The onus of proof rested on the Opponent, with the standard of proof being the ordinary civil standard on the balance of probabilities. The relevant date for determining the rights of the parties was the filing date of the application, 8 February 2019.

The delegate found that the Opponent had failed to provide any evidence in support of its opposition. Consequently, the Opponent had not discharged the onus of proof required to establish any of the nominated grounds of opposition, including section 44. As no grounds of opposition were established, the delegate determined that the trade mark application could proceed to registration. The delegate awarded costs against the Opponent in favour of the Applicant.