The One Australia and New Zealand Pty Ltd

The One Australia and New Zealand Pty Ltd sought to register a trade mark. The Registrar of Trade Marks rejected the application under section 44 of the *Trade Marks Act 1995* (Cth) on the grounds that the proposed mark was deceptively similar to an existing registered trade mark. The applicant then requested to be heard by the Registrar under section 33 of the Act, but this request was refused. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the Registrar had erred in refusing the applicant's request to be heard under section 33 of the *Trade Marks Act 1995* (Cth). This involved determining whether the applicant had established sufficient grounds to warrant a hearing in relation to the rejection of its trade mark application under section 44 of the Act, specifically concerning the issue of deceptive similarity.

The Court considered the principles governing the exercise of the Registrar's discretion under section 33. It was held that a request to be heard under section 33 should not be refused lightly, particularly when the applicant raises arguable points regarding the grounds for rejection. The Court found that the applicant had presented a prima facie case that the trade marks were not deceptively similar, thereby raising a question that warranted further consideration through a hearing. The Registrar's refusal to grant a hearing was therefore found to be an error.

The Court ordered that the Registrar's decision to refuse the request to be heard be set aside, and that the matter be remitted to the Registrar to afford the applicant an opportunity to be heard.