Opposition by Duncan Farquhar to registration of trade mark application 2103656 (41) – EcoConnect – in the name of Kristy Hobson

This matter concerned an opposition by Duncan Farquhar (the Opponent) to the registration of the trade mark application no. 2103656, for the mark "EcoConnect", in the name of Kristy Hobson (the Applicant). The Opponent filed a Statement of Grounds and Particulars alleging various grounds for opposition under sections 43, 44, 58, 58A, 59, 60, and 62A of the *Trade Marks Act 1995* (Cth). The proceedings were heard by Nicholas Smith, a Delegate of the Registrar of Trade Marks.

The legal issues before the Delegate were whether the Opponent had successfully established any of the nominated grounds for opposition. Specifically, the Delegate considered whether the Applicant's trade mark application was deceptive or misleading, whether it was substantially identical or deceptively similar to an earlier trade mark, whether the Applicant intended to use the mark or had authorised its use, and whether the Applicant had acquired the right to use the mark. The Delegate also considered the ground of opposition under section 62A, which relates to bad faith.

In reaching his decision, the Delegate applied the principle that the onus rests on the Opponent to establish the grounds of opposition. The Delegate noted that the Applicant had provided detailed evidence regarding the creation of her business under the trade mark, and crucially, there was no evidence that the Opponent had ever traded under its trade mark. Consequently, the Delegate found that the Opponent had failed to establish the ground of opposition under section 62A. The Delegate also found that the Opponent had failed to establish any of the other nominated grounds for opposition.

The Delegate ordered that trade mark application no. 2103656 may proceed to registration, subject to a one-month period from the date of the decision, unless a notice of appeal was filed. The Delegate also awarded costs against the Opponent in favour of the Applicant, applying the general rule that costs follow the event.