Radio Systems Corporation v Sustainable Agriculture and Food Enterprises Pty Ltd

Radio Systems Corporation (the Applicant) sought to register the trade mark "PETSAFE" for various goods including pet doors and electronic pet containment systems. Sustainable Agriculture and Food Enterprises Pty Ltd (the Opponent) opposed this application, relying on section 60 of the *Trade Marks Act 1995* (Cth), which concerns the use of a trade mark by the opponent prior to the filing date of the application. The decision was made by Jock McDonagh, a Hearing Officer for Trade Marks and Designs Oppositions and Hearings.

The primary legal issue before the Hearing Officer was whether the Opponent had established that the PETSAFE trade mark had become generally recognised in Australia as designating goods connected with the Opponent through use prior to the filing date of the Applicant's trade mark application. This required the Opponent to demonstrate sufficient use and recognition of its PETSAFE trade mark in Australia.

The Hearing Officer found that the Opponent had successfully established its ground of opposition under section 60. The Opponent provided evidence, including declarations and annexures, detailing the creation and registration of its PETSAFE trade mark, and its promotion and advertising in Australia since at least May 1998. This evidence included details of goods sold, advertisements in various publications, and the availability of these goods through Australian distributors and retail stores, both physical and online. The Hearing Officer was satisfied that this evidence demonstrated the PETSAFE trade mark had become generally recognised in Australia as designating goods connected with the Opponent.

Consequently, the Hearing Officer refused to register the Applicant's trade mark application. The Opponent was awarded costs against the Applicant in accordance with the relevant regulations.