Pepsi-Cola Bottlers Australia Pty Ltd v Berri (NSW) Limited

Pepsi-Cola Bottlers Australia Pty Ltd, the opponent, opposed the registration of the trade mark application SUNNY DELIGHT, filed by Berri (NSW) Limited, the applicant. The application sought registration for mineral and aerated waters, other non-alcoholic drinks, fruit juices, and fruit drinks in Class 32. The opposition was based on several grounds, including that the applicant was not the owner of the trade mark, that the mark was not capable of distinguishing the applicant's goods, that its use would be contrary to law, and that it would be likely to deceive or cause confusion.

The delegate of the Registrar of Trade Marks was required to determine whether any of the grounds of opposition had been established by the opponent. The opponent had failed to serve any evidence in support of its opposition, despite being granted extensions of time. The applicant, in contrast, had provided evidence, including a statutory declaration from its solicitor, asserting that the opponent had not provided evidence for its grounds of opposition and that searches of the register and the applicant's knowledge did not reveal any basis for the opposition.

The delegate applied the principle that the onus is on the opponent to establish the grounds of opposition under section 55 of the *Trade Marks Act 1995*. Citing *Blount Inc v Registrar of Trade Marks*, the delegate noted that establishing a ground requires placing before the decision-maker material upon which they can be persuaded on the balance of probabilities. As the opponent had provided no such material, and the applicant's evidence effectively negated the grounds raised, the delegate found that none of the grounds of opposition had been established.

Consequently, the delegate dismissed the opposition and directed that the application for the trade mark SUNNY DELIGHT could proceed to registration, subject to payment of the registration fee and any appeal from the decision.