Pamela Margaret Brown v Herron Pharmaceuticals Pty Ltd

Pamela Margaret Brown applied to register two trade marks, numbers 661167 and 670215, for clothing, footwear, and headgear. Herron Pharmaceuticals Pty Ltd opposed these applications. The opposition was heard by a delegate of the Registrar of Trade Marks.

The primary legal issues before the delegate were whether the applicant intended to use the marks as trade marks in the course of trade, whether the proposed marks were deceptively similar to the opponent's registered trade marks, whether the use of the applicant's marks would be contrary to law, whether the use of the marks would be likely to deceive or cause confusion, and whether the registrar should exercise discretion to refuse registration due to the potential dilution of the opponent's rights.

The delegate found that the opponent had successfully established that the applicant did not intend to use the marks as trade marks. The evidence indicated that the applicant's use of the marks on clothing was primarily for educational and promotional purposes related to farm safety for children, rather than for commercial sale or as an indication of trade origin. The delegate noted that while some items had been sold, there was no evidence of a commercial motive or intention to conduct a trade in clothing. Furthermore, the delegate found that the applicant had not provided sufficient evidence regarding the trade mark "Farmer Goanna," reinforcing the conclusion of a lack of intention to use it as a trade mark.

Consequently, the delegate upheld the opposition on the ground that the applicant lacked the intention to use the marks as trade marks. The delegate also found that the applicant did not intend to assign the marks to a body corporate for use as trade marks. The delegate did not make a final determination on the other grounds of opposition, as the first ground was sufficient to refuse registration.