Opposition by SSP Assets Pty Ltd to registration of trade mark application numbers 2451571 (classes 12 and 42) and 2451575 (classes 12, 39, 40 and 42) both for the trade mark

This matter concerns an opposition by SSP Assets Pty Ltd (the Opponent) to two trade mark applications, numbers 2451571 and 2451575, filed by an unnamed Applicant. The applications sought registration of the trade mark for goods and services across various classes, including class 12 (vehicles), class 39 (transportation), class 40 (material treatment), and class 42 (scientific and technological services). The opposition was heard by Anne Makrigiorgos, Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer included whether the Opponent had established any of the grounds of opposition nominated under sections 43, 58, 60, 62(b), and 62A of the relevant legislation. The Opponent bore the burden of proving at least one ground on the balance of probabilities, with the determination of rights being assessed as at the priority date of the applications.

The Hearing Officer found that the Opponent had successfully established the ground of opposition under section 62A. This finding was based on evidence detailing the historical significance and reputation of the "Elfin" brand in the context of motor racing and sports cars, and the Opponent's subsequent purchase of the "Elfin brand" and associated intellectual property. The Hearing Officer noted that the Opponent had continuously used the "ELFIN" and "ELFIN SPORTS CARS" trade marks since acquiring the brand.

Accordingly, the Hearing Officer refused to register the trade mark applications. The Hearing Officer also directed that if a notice of appeal was served within one month, the disposition of the applications would be in accordance with the court's direction or order. Costs were awarded against the Applicant in favour of the Opponent.