Opposition by Suree Interfoods Co Ltd to registration of trade mark application number 2029354 (class 29, 30) – AKETHAI with device - in the name of Almma Holdings Pty Ltd.

This matter concerned an opposition by Suree Interfoods Co Ltd (the Opponent) to the registration of the trade mark application number 2029354, known as AKETHAI with device, in classes 29 and 30, filed by Almma Holdings Pty Ltd (the Applicant). The opposition was heard by Blake Knowles, Hearing Officer, Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer included whether the grounds of opposition under sections 42(b), 60, and 62A of the *Trade Marks Act 1995* (Cth) were established. Specifically, the Opponent contended that the use of the trade mark would be likely to constitute an infringement of copyright. The Opponent bore the burden of establishing one of these grounds on the balance of probabilities, with the rights of the parties assessed as at the relevant date.

The Hearing Officer found that the ground of opposition under section 42(b) of the *Trade Marks Act 1995* (Cth) was established. This conclusion was based on evidence demonstrating that the Opponent was the owner of the copyright in the AKETHAI device, having created it in 2006 through an employee who assigned copyright to the Opponent at the time of creation. The evidence also showed that the Opponent had used the trade mark in Thailand since 2006 and had supplied products bearing this trade mark to the Applicant for importation into Australia since 2013. The Hearing Officer determined that the Applicant's proposed use of the trade mark would likely infringe the Opponent's copyright. Consequently, the Hearing Officer did not need to consider the remaining grounds of opposition.

The Hearing Officer ordered that the registration of the trade mark application be refused. The refusal was to be recorded one month from the date of the decision, unless a notice of appeal was served on the Registrar of Trade Marks. The Opponent was awarded costs against the Applicant.