SOS Sportswear AB v Leanne Michael Pty Ltd

This matter concerned an opposition by SOS Sportswear AB to the registration of the trade mark "S.O.S" by Leanne Michael Pty Ltd. The opposition was heard by Heath Wilson, acting as a delegate of the Registrar of Trade Marks. The opponent cited several grounds for opposition under the *Trade Marks Act 1995* (Cth), but at the hearing, only grounds under sections 42(b), 59, and 60 were pressed.

The legal issues before the court were whether the applicant, Leanne Michael Pty Ltd, intended to use the trade mark "S.O.S" in Australia in relation to the specified goods and services, and whether the opponent's mark had acquired sufficient reputation in Australia to warrant opposition under section 60, and whether the applicant's proposed use would be likely to deceive or cause confusion under section 42(b). The onus was on the opponent to establish these grounds on the balance of probabilities.

The delegate found that the opponent had not established a prima facie case for lack of intention to use the trade mark under section 59. The filing of an application is prima facie evidence of intention to use, and the opponent had not provided sufficient evidence to shift this onus. The delegate also noted that the applicant had not been put on notice that its intention to use the mark would be a central issue. The delegate deferred a decision on section 42(b) pending consideration of section 60, but ultimately found that the grounds of opposition under sections 42(b), 59, and 60 had not been established.

As the opponent had not established any ground of opposition, the delegate decided to allow the trade mark application no. 1005901 to proceed to registration one month from the date of the decision, subject to any appeal. The opponent was also ordered to pay the applicant's costs.