RYD Brand Australia Pty Ltd v Limited Edition Surf Hardware Pty Ltd

This matter concerned an opposition to the registration of a trade mark by Limited Edition Surf Hardware Pty Ltd (the Opponent) against an application by RYD Brand Australia Pty Ltd (the Applicant). The opposition was brought under various sections of the *Trade Marks Act 1995* (Cth), including sections 43, 44, 58A, and 60. The decision was made by Sheona Robertson, a Hearing Officer, acting as a delegate of the Registrar of Trade Marks, based on the written record as the Opponent elected to proceed without a hearing.

The legal issues before the Hearing Officer were whether the Opponent had established any of the nominated grounds for opposing the Applicant's trade mark application. The onus rested on the Opponent to prove at least one ground of opposition on the balance of probabilities, with the relevant date for determining the parties' rights being the filing and priority date of the Applicant's trade mark. The Opponent claimed to have used its registered trade marks on surf-related products since 2014 and provided evidence of its distribution network and use of trade marks containing the word 'Ryder'.

The Hearing Officer found that the Opponent had failed to establish any of the grounds of opposition it had nominated. Specifically, the ground of opposition under section 60 of the Act was not established. Consequently, the Hearing Officer decided that the Applicant's trade mark application, number 2149207, could proceed to registration, subject to a one-month waiting period from the date of the decision, unless an appeal was filed. The Hearing Officer also awarded costs against the Opponent, following the usual principle that costs follow the event.