Re: Trade mark application number 1970295 (class 41) - NSW Young Guns in the name of Australian Karting Association Ltd

This matter concerned a trade mark application by Australian Karting Association Ltd, where the opponent sought to amend its statement of grounds and particulars (SGP). The hearing officer, M. Cooper, was tasked with determining whether to allow the requested amendment under regulation 5.12 of the Trade Marks Regulations 1995 (Cth).

The legal issue before the hearing officer was whether the opponent had demonstrated an "error or omission" in its original SGP, and if so, whether the Registrar's discretion should be exercised to allow the amendment. Specifically, the opponent sought to substitute section 58 for section 58A of the Trade Marks Act 1995 as the ground of opposition, as the particulars provided were clearly applicable to section 58 and not section 58A, which had a different legal basis.

The hearing officer reasoned that the phrase "error or omission" should be interpreted according to its plain, ordinary meaning, not as a term of art, and that the error must be obvious. Applying this principle, the nomination of section 58A when the particulars clearly related to section 58 was considered an obvious error, particularly given that section 58A was not applicable to the circumstances of the application. The hearing officer also considered the opponent's potential lack of legal assistance when completing the form, noting that ignorance of the law and inadvertence can constitute relevant errors. Having found a clear error, the hearing officer then considered the exercise of discretion, taking into account factors such as prejudice, public interest, and the reasonableness of the explanation for the amendment request.

Ultimately, the hearing officer was satisfied that the evidence weighed in favour of allowing the amendment. Accordingly, the hearing officer directed that the SGP be corrected to reflect section 58 as the ground of opposition, with the existing particulars, and ordered that the amended SGP be provided to the applicant, allowing the opposition to proceed.