Oppositions by Martin Richards to registration of trade mark application numbers 1953011 (Classes 16, 35, 43) – BLACK STAR PASTRY figurative, 1953012 (Classes 16, 30, 35, 43) BLACK STAR PASTRY in the name of Black...

This matter concerned oppositions by Martin Richards to the registration of two trade mark applications, numbers 1953011 and 1953012, both for the figurative mark and word mark BLACK STAR PASTRY, filed by Black... The hearing officer, Blake Knowles, considered the grounds of opposition raised under sections 42(b), 44, 58, and 60 of the *Trade Marks Act 1995* (Cth).

The primary legal issues before the hearing officer were whether the grounds of opposition, particularly those under sections 58 and 60, were established on the balance of probabilities, and whether the trade mark applications should proceed to registration, subject to any necessary amendments. The opponent bore the burden of proving these grounds as at the relevant date.

The hearing officer found that, subject to amendments agreed to by the applicant, the grounds of opposition were not established for the remaining goods and services. The reasoning applied involved assessing the evidence presented by both the opponent, who claimed prior use of the name "BLACKSTAR" in relation to coffee businesses, and the applicant. The hearing officer determined that the opponent had not discharged the onus of proof for the nominated grounds of opposition in relation to the specified goods and services.

Consequently, the hearing officer ordered that the trade marks may proceed to registration not less than one month from the date of the decision, unless an appeal was filed, in which case registration would be stayed pending the outcome of the appeal. Costs were declined for both parties, as each had achieved a measure of success across the consolidated oppositions.