Opposition by David Edwards to registration of trade mark application number 2066574 (classes 9, 16, 25, 41) – THE GRADE CRICKETER – in the name of Samuel James John Perry

This matter concerned an opposition by David Edwards (the Opponent) to the registration of the trade mark application number 2066574, "THE GRADE CRICKETER," filed by Samuel James John Perry (the Applicant) in classes 9, 16, 25, and 41. The Opponent pursued grounds of opposition under sections 43, 58, and 62A of the *Trade Marks Act 1995* (Cth). The decision was made by Nicholas Barbey, Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer were whether any of the grounds of opposition raised by the Opponent had been established. The Opponent contended that the Applicant had not used the trade mark independently prior to the involvement of the Opponent and a third party, Ian Higgins, in a collaborative venture that began with a Twitter account and subsequently led to the co-authorship of books and other creative projects. The Opponent argued that this collaboration and his contributions meant the trade mark should not be registered by the Applicant alone. The relevant standard of proof was the ordinary civil standard based on the balance of probabilities, and the date for determining the rights of the parties was 4 February 2020, the filing and priority date of the application.

The Hearing Officer found that the Opponent had not established any of the grounds of opposition. The evidence presented did not demonstrate that the Applicant had acted contrary to sections 43, 58, or 62A of the Act. Consequently, the Hearing Officer decided that the trade mark application could proceed to registration. The Hearing Officer also awarded costs against the Opponent in favour of the Applicant, in accordance with the usual practice that costs follow the event.