Re: Opposition by ESG Media Pty Ltd to registration of trade mark application number 1867097 (class 42) CODEBREWERY in the name of Jeremy John Hague & Kate Louise Jones both as trustees for Hague Family Trust

This matter concerned an opposition by ESG Media Pty Ltd to the registration of the trade mark application number 1867097, CODEBREWERY, in class 42, filed by Jeremy John Hague and Kate Louise Jones as trustees for Hague Family Trust. The opposition was heard by Hearing Officer Katrina Brown.

The legal issues before the Hearing Officer were whether the grounds of opposition pursued by ESG Media Pty Ltd under sections 42(b), 59, and 62A of the *Trade Marks Act 1995* (Cth) were established. The relevant date for determining the rights of the parties was 18 August 2017, being the filing and priority date of the trade mark application. The onus was on the Opponent to establish at least one of the nominated grounds of opposition on the balance of probabilities.

The Hearing Officer found that the ground of opposition under section 59 of the Act had been established. In reaching this decision, the Hearing Officer noted that the Applicant's evidence filed in answer was out of time and, despite being afforded an opportunity, the Applicant failed to make a compelling case for its consideration. Consequently, the Applicant's evidence was not taken into account. The Opponent provided evidence demonstrating its establishment as a software development studio and its preparations to rebrand using the mark CODE BREWERY, including conducting searches that did not locate use of the mark by other businesses in the IT or software sector.

Accordingly, the Hearing Officer refused to register the trade mark application number 1867097. Costs were awarded against the Applicant in accordance with the official scale.