Re Jack Grieve

This decision concerns an application before the Registrar of Trade Marks, acting as a delegate, regarding the revocation of a trade mark acceptance. The applicant sought revocation, and the delegate, Terry Williams, considered the evidence presented by the applicant and the potential evidence of Ms Notaras, who had not yet filed her reply.

The primary legal issue before the delegate was whether to proceed with an ex parte assessment of the revocation application, given the state of the evidence and the procedural fairness concerns. Specifically, the delegate had to determine the weight to be given to the applicant's evidence, much of which was unsupported assertion or relied on questionable sources, and the implications of Ms Notaras not having yet filed her evidence. The delegate also considered the reliance on unsworn assertions by both parties and the procedural unfairness arising from the lack of opportunity for reply.

The delegate reasoned that while section 25 of the relevant legislation might be relevant to a decision under section 44, its weight in an ex parte matter would require strong supporting evidence and adversarial testing. The applicant's evidence was found to be unclear and largely unsupported. The delegate concluded that it would be inappropriate to act as an inquisitor and compromise the role of impartial assessment, especially when Ms Notaras, the person best placed to contextualise the applicant's evidence, had not yet presented her case. Furthermore, the reliance on unsworn assertions, without a right of reply, created significant procedural fairness issues that could not be remedied within the existing process, potentially bringing the hearing process into disrepute.

Consequently, the delegate determined that it was not appropriate to make an ex parte assessment at that stage. The delegate indicated that the case for revocation ought to stand on its own merits, and if those merits required further evidence or advocacy, it was not the role of the delegate to provide it. The delegate expressed a reluctance to proceed in a manner that would likely lead to perceptions of partisanship and undermine the integrity of the hearing process.