The Coca Cola Company v Teavolution Pty Ltd

The Coca-Cola Company (Opponent) opposed Teavolution Pty Ltd's (Applicant) application to register the trade mark GOLD PEAK. The proceedings were heard by a delegate of the Registrar of Trade Marks. The Opponent relied solely on the ground of opposition under section 62A of the relevant Act, which concerns conduct that is contrary to honest commercial practices.

The primary legal issue before the delegate was whether the Applicant's conduct in applying to register the GOLD PEAK trade mark was contrary to honest commercial practices, as contemplated by section 62A. This required the delegate to consider the Applicant's knowledge of the Opponent's use of the GOLD PEAK trade mark, particularly in the United States, and the circumstances surrounding the Applicant's decision to seek registration in Australia.

The delegate reasoned that the Applicant's assertion of only searching the Australian Trade Marks Register before adopting the GOLD PEAK mark was fanciful, given the prior opposition proceedings between the parties concerning other trade marks. The delegate found a pattern of behaviour where the Applicant had filed applications for trade marks already in use internationally by the Opponent or its related entities. The delegate concluded that a person in the Applicant's position ought to have known not to apply for the registration of the GOLD PEAK trade mark, as the Applicant's conduct fell short of acceptable commercial behaviour.

The delegate found that the Opponent had established the ground of opposition under section 62A. Consequently, the delegate decided to refuse the registration of the trade mark.