Re: Opposition by Samuel Smith & Son Pty Ltd to registration of trade mark application number 1870524 (class 33) Epic Negociants (Figurative) in the name of Cherish Corporation Pty Ltd

This matter concerned an opposition by Samuel Smith & Son Pty Ltd (the Opponent) to the registration of the trade mark application number 1870524, a figurative mark for "Epic Negociants" in Class 33, by Cherish Corporation Pty Ltd (the Applicant). The opposition was heard by Jock McDonagh.

The legal issues before the court were whether the Opponent had established any grounds for opposition under the *Trade Marks Act 1995* (Cth), specifically under sections 42(b), 44, 58, and 60. The Opponent, part of the Yalumba group of companies, argued that its own trade marks and its distribution business, NEGOTIANTS AUSTRALIA, which had been operating since 1984, would be affected by the registration of the Applicant's mark.

The court considered the definition of "negociant" as a merchant involved in the production, bottling, or purchase of grapes for wine making or retailing. It found this term to be descriptive of certain services offered by the Opponent and that other traders should be able to use the term or similar variations in connection with similar goods or services. The court determined that none of the grounds of opposition pressed by the Opponent were established.

The court ordered that the trade mark application proceed to registration and awarded costs against the Opponent in accordance with the general rule that costs follow the event.