Opposition by Hive Empire Pty Ltd to registration of trade mark application number 1960370 (Class 45) – Finders International Tracing Heirs to Estates, Property & Assets figurative - in the name of Finders...

This matter concerned an opposition by Hive Empire Pty Ltd to the registration of a figurative trade mark application number 1960370, filed by Finders International Tracing Heirs to Estates, Property & Assets, for services in Class 45. The opposition was brought under various sections of the *Trade Marks Act 1995* (Cth), including sections 42(b), 43, 44, 58A, and 60. The hearing officer, Blake Knowles, was required to determine whether any of the grounds of opposition had been established.

The legal issues before the hearing officer included whether the trade mark applied for was likely to deceive or cause confusion, whether it was substantially identical or deceptively similar to existing trade marks owned by the opponent, and whether the opponent had established grounds for opposition based on misrepresentation or other relevant provisions of the Act. The opponent bore the burden of proving its grounds of opposition on the balance of probabilities, with the rights of the parties assessed as at the relevant date.

In reaching his decision, the hearing officer considered the evidence filed by both parties, noting that a declaration filed by the opponent's legal representative had some probative value as it was based on information reasonably specific and likely derived from company records. The opponent relied on its ownership of two registered trade marks, numbers 1559528 and 1813169, which included the word "FINDER" and covered a broad range of goods and services in multiple classes. The opponent asserted significant use of its "FINDER" marks since 2012, supported by confidential revenue and promotional expenditure figures, as well as website traffic data. However, the hearing officer found that the opponent had failed to establish any of the nominated grounds of opposition, specifically noting that there was no evidence to suggest the applied-for trade mark contained any connotation likely to deceive or cause confusion, thus failing the section 43 ground.

Consequently, the hearing officer ordered that the trade mark application could proceed to registration, subject to the usual one-month period from the decision date, unless a notice of appeal was served. In the event of an appeal, registration was directed to be stayed until the appeal was withdrawn or discontinued. The applicant was awarded costs against the opponent, following the general rule that costs follow the event.