Sresta Natural Bio Products Private Limited v Ashok Bhimaraju

This matter concerned an opposition to a trade mark application filed by Sresta Natural Bio Products Private Limited (the Applicant) by Ashok Bhimaraju (the Opponent). The opposition was brought under the *Trade Marks Act 1995* (Cth), specifically concerning grounds related to bad faith and the potential for the Applicant's mark to be registered in bad faith. The decision was made by Nicholas Smith, Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issues before the court were whether the Applicant's decision to adopt and seek registration of a mark containing the word ‘mantra’ in respect of its goods was made in bad faith, pursuant to section 62A of the *Trade Marks Act 1995* (Cth), and whether the opposition could be sustained on the basis of section 60 of the Act. The court was required to determine if the Applicant's conduct was unscrupulous, underhanded, or unconscientious.

The Hearing Officer found that the onus was on the Opponent to establish bad faith, a burden that is not easily met due to the serious nature of such an allegation. The evidence presented did not support a conclusion that the Applicant sought to take advantage of the Opponent's reputation. This was primarily due to a lack of evidence demonstrating the Opponent's use or reputation of its mark in Australia, significant differences between the marks beyond the common word ‘mantra’, and no evidence suggesting the Applicant was aware of the Opponent at the relevant date. Consequently, the Hearing Officer was not satisfied that the Applicant's conduct in filing the application was unscrupulous, underhanded, or unconscientious, and therefore the ground of opposition under s 62A was not established.

The Opponent failed to establish either of the nominated grounds of opposition. Accordingly, the trade mark application was permitted to proceed to registration one month from the date of the decision, unless a notice of appeal was served. The Applicant was awarded costs against the Opponent.