Re: Trade mark application 2030672 (29, 30) Yumbo filed in the name of Hungry Jack's Pty Limited

This matter concerned an application by Hungry Jack's Pty Limited for the registration of the trade mark YUMBO. Following an adverse report, Hungry Jack's responded with evidence and submissions, leading to the acceptance of the application under section 44(4) of the *Trade Marks Act 1995* (Cth) and its advertisement. Subsequently, a Notice of Intention to Oppose was filed by a Cited Owner, who then requested the revocation of the acceptance of the trade mark. The delegate of the Registrar of Trade Marks, Nicholas Smith, heard the matter.

The primary legal issue before the delegate was whether it was reasonable to revoke the acceptance of the trade mark application. This involved considering the grounds for rejection under section 44 of the Act, the evidence submitted by Hungry Jack's, and the procedural requirements for the admissibility of evidence. The delegate also had to assess whether the acceptance of the trade mark was reasonably supported by established tests, despite the applicant's arguments regarding prior use and the potential waste of resources.

The delegate considered the evidence presented by Hungry Jack's, including declarations and annexures. However, the delegate found that several annexures were not in the prescribed form of a declaration and therefore could not be considered as evidence, except for correspondence already on the record or exhibited to a valid declaration. While acknowledging the applicant's submissions on prior use and the potential inconvenience of revocation, the delegate was not persuaded that these factors justified maintaining the acceptance. The delegate concluded that the acceptance was not reasonably supported by the accepted tests and that it would be a greater waste of resources to proceed with opposition proceedings under the circumstances.

Accordingly, the delegate was satisfied that it was reasonable to revoke the acceptance of the trade mark application under section 38 of the Act. The delegate ordered the revocation of acceptance for trade mark application 2030672, and the application was returned to examination.