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

This decision concerns an opposition to a trade mark application brought by Spyval Pty. Ltd. atf the Valued Lives Trust (the Opponent) against Valued Lives Foundation Ltd (the Applicant). The matter came before Nicholas Smith, a delegate of the Registrar of Trade Marks, who was required to decide the opposition under section 55 of the relevant Act. The Opponent nominated grounds of opposition under sections 59 and 62A of the Act.

The legal issues before the delegate were whether the Opponent had established any of the grounds of opposition it nominated, considering the onus of proof rests on the Opponent and the standard of proof is the ordinary civil standard on the balance of probabilities. The relevant date for determining the rights of the parties was the filing date of the application, 4 November 2021. A key issue was the admissibility and relevance of evidence filed by the Opponent, particularly evidence filed in reply and evidence filed out of time.

The delegate reasoned that the Opponent had failed to discharge the onus of proof. The Opponent did not file evidence in support of its grounds of opposition by the required deadline. While the Opponent subsequently filed evidence in reply, the delegate found this material did not properly respond to the Applicant's evidence and appeared to be an attempt to file evidence in support after the deadline had passed. Furthermore, the Opponent failed to pay the required fees for filing this late evidence. Consequently, the delegate had no regard to any of the Opponent's evidence.

As the Opponent had not established any grounds of opposition, the delegate decided that the trade mark application could proceed to registration, subject to a one-month waiting period from the date of the decision, unless an appeal was filed. The delegate also awarded costs against the Opponent in favour of the Applicant, following the general rule that costs follow the event.