Re: Opposition by Accolade Wines Australia Limited and Grant Burge Wines Pty Ltd to registration of trade mark applications 1926574 (33) – P.N. BURGE & SONS, 1928531 (33) – BURGE + KIN (fancy) and 1967592 (33) –...

This matter concerned opposition proceedings before a delegate of the Registrar of Trade Marks, Nicholas Smith. The Opponent, Accolade Wines Australia Limited and Grant Burge Wines Pty Ltd, opposed the registration of three trade mark applications: 1926574 (P.N. BURGE & SONS), 1928531 (BURGE + KIN (fancy)), and 1967592. The core of the dispute revolved around the Opponent's evidence filed in reply, which included a declaration claimed to be confidential, and the delegate's ability to consider this evidence in determining the opposition.

The primary legal issue before the delegate was whether the Opponent had established any of the grounds for opposition it had nominated. This required the delegate to assess the evidence filed by both parties, including the Opponent's declaration, despite the claim of confidentiality. The delegate also had to determine the extent to which any commercially sensitive information within the evidence needed to be discussed to reach a decision, and how to approach the confidentiality claim in light of the onus on the Opponent to prove its case.

The delegate adopted the approach from *Source Homeloans Pty Ltd v Coles Group Ltd*, holding that a party claiming confidentiality must identify the sensitive information with specificity. While monetary figures were treated as confidential, other aspects of the declaration were not sufficiently identified as such. The delegate found that the Opponent had failed to establish any of the grounds of opposition, including the ground under section 62A of the Act. Consequently, the delegate ordered that the trade mark applications could proceed to registration, subject to a one-month waiting period and any potential appeal. The Applicant was awarded costs, with reduced costs awarded in respect of two of the applications.