Opposition by Vitaco Health IP Pty Ltd to registration of trade mark application number 1975915 (class 5) - VITOCA - in the name of Chun Ding

This matter concerned an opposition by Vitaco Health IP Pty Ltd to the registration of the trade mark application number 1975915, "VITOCA", in class 5, filed by Chun Ding. The opposition was heard by Adrian Richards, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the opponent had established its grounds of opposition under sections 44 and 60 of the *Trade Marks Act 1995* (Cth). The onus rested on the opponent to prove, on the balance of probabilities, that either ground was established, with the rights of the parties assessed as at the priority date of the application, 16 December 2018.

The delegate found that the opponent had established the ground of opposition under section 60 of the Act. This conclusion was reached after considering the evidence filed by the opponent, which included declarations from its Chief Executive Officer and the Chairman of CW Retail Services Pty Ltd, as well as the Chairman of Mr Vitamins. The applicant did not file evidence in accordance with the regulations, and the delegate declined to give weight to late-filed materials presented as unsworn evidence, despite some sympathy for the applicant's circumstances. The delegate determined that, given the reputation of the opponent's marks, the use of the applicant's trade mark was likely to cause confusion.

Consequently, the delegate refused to register the trade mark "VITOCA". As the ground under section 60 was established, it was unnecessary to consider the ground under section 44. The delegate also awarded costs against the applicant, applying the usual rule that costs follow the event.