Re: Opposition by Myriad Women's Health, Inc. (formerly Counsyl, Inc.) to registration of trade mark application number 1857394 (classes 16, 39, 42, 44 - 4cyte in the name of 4Cyte Pathology Pty Limited

This matter concerned an opposition by Myriad Women's Health, Inc. (formerly Counsyl, Inc.) to the registration of trade mark application number 1857394, filed by 4Cyte Pathology Pty Limited, for goods and services across classes 16, 39, 42, and 44. The opposition was heard by Jock McDonagh, a delegate of the Registrar of Trade Marks. The Opponent initially nominated grounds under sections 42(b), 44, 58, 58A, and 60 of the *Trade Marks Act 1995* (Cth), but at the hearing, only pressed grounds under sections 44, 58, and 58A. The Opponent bore the onus of establishing these grounds on the balance of probabilities, with the relevant date for determining the rights of the parties being 6 July 2017.

The primary legal issue before the delegate was whether the Applicant's trade mark application should be refused registration based on the grounds of opposition pressed by the Opponent. Specifically, the delegate was required to determine if the Applicant's trade mark was substantially identical with or deceptively similar to a registered trade mark or a trade mark for which registration was being sought by another person, in respect of similar or closely related goods or services, and if the priority date of the Applicant's mark was not earlier than the priority date of the other trade mark, as stipulated by section 44 of the Act. The delegate also considered whether the exceptions to refusal under section 44(3) (honest concurrent use or other proper circumstances) or section 44(4) (continuous use) applied.

The delegate found that the ground of opposition under section 44 of the Act had been established. The decision notes that there was no evidence presented to satisfy the requirements for honest concurrent use or prior use of the trade mark, which would have allowed for registration under subsections 44(3) or 44(4). Consequently, the delegate concluded that the application for registration of trade mark 1857394 must be refused. As the successful party, the Opponent was awarded its costs against the Applicant.