Pegasus Investments & Holdings Pty Limited v OMNI Footwear Pty Limited

Pegasus Investments & Holdings Pty Limited ("PIH") opposed the registration of the trade mark "Omni" by Omni Footwear Pty Limited ("Omni") for footwear in class 25. The delegate of the Registrar of Trade Marks was tasked with determining whether the application should be registered or refused, following PIH's filing of a notice of opposition and supporting evidence, with no evidence in answer provided by Omni.

The primary legal issue before the delegate was whether PIH had established any of the grounds of opposition it nominated, particularly those falling within sections 58, 60, and 42 of the *Trade Marks Act 1995*, or a general "catch-all" ground. The delegate also considered the onus of proof in opposition proceedings, noting that it rests with the opponent to establish a ground of opposition before any onus shifts to the applicant.

The delegate found that the ground of opposition under section 58 of the Act, that the applicant was not the owner of the trade mark, had been established. This was based on PIH's comprehensive evidence demonstrating continuous use of the identical trade mark for footwear since 1996, prior to Omni's application date, and the absence of any evidence from Omni to counter this claim. The delegate concluded that no other grounds of opposition were sufficiently established.

Consequently, the delegate refused to register Omni's trade mark application. The delegate also ordered that Omni pay the costs of PIH in accordance with the official scale, as costs typically follow the event in such proceedings.