Stretch Lab Franchise LLC v Caddee Pty Ltd

Stretch Lab Franchise LLC (the Opponent) opposed the registration of a trade mark by Caddee Pty Ltd (the Applicant) under section 52 of the *Trade Marks Act 1995* (Cth). The dispute concerned the Applicant's trade mark application, with the relevant date for determining the rights of the parties being 20 May 2019. The Opponent filed evidence from its Chief Stretch Advisor and Chief Executive Officer.

The court was required to determine whether the Opponent had established any grounds for opposing the registration of the Applicant's trade mark. Specifically, the court considered grounds under sections 42(b), 44, 58, and 60 of the *Trade Marks Act 1995* (Cth). The central issue was whether the Opponent's evidence demonstrated a sufficient basis to prevent the Applicant's trade mark from proceeding to registration.

The court found that the ground of opposition under section 42(b) was unsuccessful. While the Opponent established a ground of opposition under section 44, the court was satisfied on the evidence that the Applicant was entitled to registration under section 44(4) due to its prior continuous use of the trade mark. None of the other grounds of opposition were established. Consequently, the trade mark application was permitted to proceed to registration, subject to an endorsement that it had been allowed under section 44(4). The Opponent was also ordered to pay the Applicant's costs.