Shirley Joan Smith v Lavender Lady (Australia) Pty Ltd

This matter concerned an opposition by Shirley Joan Smith against the trade mark application 884358 by Lavender Lady (Australia) Pty Ltd. The opposition was heard by Alison Windsor, a Hearings Officer at IP Australia. The dispute centred on whether the applicant's trade mark should be registered, with the opponent raising multiple grounds of opposition.

The primary legal issues before the Hearings Officer were to determine the onus of proof in trade mark opposition proceedings under the relevant legislation and to assess whether the opponent had successfully established any of the grounds of opposition relied upon. Specifically, the Hearings Officer had to consider the opponent's nominated ground 10, which incorrectly stated the onus of proof, and other grounds relating to sections 59 and 60 of the relevant Act. The proceedings also involved significant procedural considerations regarding the admissibility and service of evidence, including a declaration with confidential exhibits and subsequent written submissions from the applicant.

The Hearings Officer clarified that under the current legislation, the onus rests on the opponent to establish at least one ground of opposition. The evidence presented by the opponent, despite some initial issues with service and confidentiality, was ultimately considered. The applicant's attempts to introduce further evidence and submissions without proper service on the opponent were unsuccessful. Ultimately, the Hearings Officer found that the opponent had established grounds of opposition under sections 59 and 60, leading to the refusal of the trade mark application.

Consequently, the Hearings Officer ordered that trade mark application 884358 be refused registration. The opponent, having been successful in the opposition, was awarded costs against the applicant on the official scale.