Pilates Haus Pty Ltd v Nikola Siljeg as trustee for the Siljeg Family Trust

This decision concerns an opposition to a trade mark application brought by Pilates Haus Pty Ltd (the Opponent) against Nikola Siljeg as trustee for the Siljeg Family Trust (the Applicant). The Opponent sought to prevent the registration of the Applicant's trade mark, arguing that its use would be contrary to law. The matter was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had established any of the grounds of opposition it nominated, specifically under sections 42(b), 58, and 60 of the relevant legislation. The delegate was required to determine these grounds based on the evidence presented by both parties, considering the onus of proof rests with the Opponent and the standard of proof is the ordinary civil standard on the balance of probabilities. The relevant date for determining the rights of the parties was also a consideration.

The delegate found that the Opponent's evidence, particularly that provided by its legal representative, was of limited regard due to a lack of direct knowledge. However, the evidence did establish that the Opponent commenced offering pilates classes in July 2020. The Applicant's evidence indicated use of the trade mark for pilates classes since 2016, predating the Opponent's establishment, and included evidence of business registration and use on social media, signage, and a website. Ultimately, the delegate was not satisfied that the Applicant's use of the trade mark would be contrary to law, and therefore the ground of opposition under section 42(b) was not established. As no grounds of opposition were established, the application was permitted to proceed to registration. The Opponent was ordered to pay the Applicant's costs.