Q Original Plastics UG and Von Wulfing GmbH & Co Kg v Quadro Der Grossbaukasten Limited

This matter concerned an opposition to a trade mark application brought by Q Original Plastics UG and Von Wulfing GmbH & Co Kg (the Opponents) against Quadro Der Grossbaukasten Limited (the Applicant). The decision was made by a delegate of the Registrar of Trade Marks, acting under section 55 of the relevant Act.

The primary legal issue before the delegate was whether the Opponents had established any of the grounds of opposition they had nominated, namely sections 42(b), 44, 58, 60, and 62A of the Act. The delegate was required to decide whether to refuse registration of the Applicant's trade mark or to register it, based on the written record and the extent to which any ground of opposition had been established.

The delegate reasoned that the onus of proof in an opposition rests upon the Opponents. The Opponents had filed no evidence in reply to the Applicant's Evidence in Answer, nor had they made any written submissions. Consequently, the delegate found that the Opponents had not discharged the onus of proof in relation to grounds under sections 58, 60, and 62A. Furthermore, the Opponents' ground of opposition under section 44 was particularised by reference to their trade mark, which had been removed from the Register for non-use prior to the determination of the opposition. In the absence of a registered trade mark upon which to rely, the delegate concluded that this ground was also not established.

As the Opponents had failed to establish any of the grounds of opposition, the delegate decided to register the Applicant's trade mark.