Sushi Train (Australia) Pty Ltd v RGR Norman Pty Ltd as trustee for the Norman Family Trust

This matter came before the court concerning an application by Sushi Train (Australia) Pty Ltd (the applicant) to register two trade marks, referred to as the "Opposed Marks," for goods including "sushi" and "sashimi." RGR Norman Pty Ltd, as trustee for the Norman Family Trust (the opponent), opposed this application. The dispute centred on the evidence filed by the applicant in support of its application.

The court was required to determine the weight and admissibility of ten statutory declarations provided by the applicant. These declarations were made by individuals familiar with the applicant's stores and stated that the declarants were unaware of any confusion between the Opposed Marks and the opponent's registered trade marks. The court also considered evidence from the opponent's attorneys, who attempted to contact the declarants and obtained further statements from some of them.

The court found that the supporting declarations were problematic. It noted that the declarations were made in a largely identical format and that the crucial paragraph regarding confusion was the only reference to the opponent or its trade marks. This raised doubts as to whether the declarants had prior knowledge of the opponent's trade marks or understood which marks were being referred to. Furthermore, the declarations stated they were made in support of the acceptance of the Opposed Marks, despite being made after the acceptance date. The court found that the evidence from the opponent's attorneys suggested that some declarants may not have been aware of the opponent's registered trade marks, particularly in light of a conversation with a supplier who stated they were unaware of any conflict and that the applicant had not explained the nature of the opposition.

The court ultimately found that the applicant had not discharged its onus of establishing that the Opposed Marks were registrable. The court ordered that the opposition be upheld and the application for registration of the Opposed Marks be dismissed.