Re: Opposition by Celli S.p.A to registration of trade mark application number 1806979 (class 7) - Celli with cat device - in the name of Inlon Pty Ltd

This matter concerned an opposition by Celli S.p.A to the registration of trade mark application number 1806979, a "Celli with cat device" mark, in the name of Inlon Pty Ltd, heard by Adrian Richards. The opposition was brought under section 52 of the *Trade Marks Act 1995* (Cth), alleging that the applicant was not the owner of the trade mark at the time of filing the application.

The primary legal issues before the delegate were whether Inlon Pty Ltd was the owner of the trade mark at the time of filing the application, and whether the trade mark had been abandoned. These issues were central to determining whether the opposition under section 52 could succeed.

The delegate applied the *nemo dat quod non habet* principle, meaning one cannot give what one does not have. Evidence indicated that Celli S.p.A had been the first user of the trade mark in Australia and had sold the business associated with the mark, including its goodwill, to another entity prior to Inlon Pty Ltd's application. Consequently, the delegate found that Inlon Pty Ltd did not acquire ownership of the trade mark from Celli S.p.A. Furthermore, the delegate determined that the trade mark had been abandoned by Celli S.p.A, as there was no evidence of its use or sale with goodwill by Celli S.p.A to Inlon Pty Ltd. Section 58 of the Act was therefore established.

The delegate refused the registration of the trade mark application number 1806979.