Steven Kelly v Pattor Pty Ltd

This matter concerned an appeal by Steven Kelly (the Applicant) against a decision of the Registrar of Trade Marks regarding the registration of a trade mark. Pattor Pty Ltd (the Opponent) had opposed the application for registration. The decision was made by Iain Campbell Thompson.

The primary legal issue before the court was whether the Applicant had established its entitlement to registration of the trade mark, notwithstanding the opposition. This involved a consideration of section 44 of the Act, specifically subsection 44(4), and the Registrar's obligation under section 55 of the Act to decide whether to register or refuse the trade mark based on the grounds of opposition.

The court found that the opposition under section 44 of the Act had not been established because the Applicant had demonstrated its entitlement to registration pursuant to subsection 44(4). Consequently, the court directed that the trade mark application could proceed to registration one month from the date of the decision, unless a notice of appeal was served on the Registrar within that period, in which case registration would be stayed pending the outcome of the appeal. The court also awarded costs against the Opponent at the official scale, pursuant to section 221 of the Act.