Spyval Pty. Ltd. atf the Valued Lives Trust v Valued Lives Foundation Ltd

Spyval Pty. Ltd. atf the Valued Lives Trust (the Opponent) opposed an application for registration of a trade mark by Valued Lives Foundation Ltd (the Applicant). The Opponent nominated grounds of opposition under sections 59 and 62A of the *Trade Marks Act 1995* (Cth). The decision was made by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The primary legal issue was whether the Opponent had established any grounds for opposing the trade mark application. This involved determining the onus of proof, which rests on the Opponent, and the applicable standard of proof, being the ordinary civil standard on the balance of probabilities. The relevant date for assessing the rights of the parties was the filing date of the application, 4 November 2021.

The delegate found that the Opponent had failed to discharge the onus of proof because it had not filed any evidence in support of its grounds of opposition within the prescribed timeframes. The Opponent's attempt to file evidence in reply was deemed improper as it did not respond to the Applicant's evidence and was filed out of time without explanation or payment of the required fees. Consequently, the delegate had no regard to the Opponent's purported evidence and concluded that no grounds of opposition had been established. The delegate ordered that the trade mark application could proceed to registration, subject to a one-month waiting period and any appeal proceedings, and awarded costs against the Opponent.