The Revenue Gallery Pty Ltd v Michael Christopher Visone

This matter concerned an opposition by The Revenue Gallery Pty Ltd (the Opponent) to the registration of a trade mark by Michael Christopher Visone (the Applicant). The proceedings were heard by Nicholas Smith, a delegate of the Registrar of Trade Marks, who was required to decide the opposition pursuant to section 55 of the relevant Act.

The legal issues before the delegate were whether the Opponent had established any of the grounds of opposition it had nominated, specifically under sections 41, 58, and 59 of the Act. The Opponent's case relied on evidence that the proposed trade mark was a term in common use within the adult entertainment industry and that the Applicant had not demonstrated any apparent use of the mark. The delegate was required to determine if these grounds were established on the balance of probabilities, with the onus resting on the Opponent.

The delegate reasoned that the Opponent had successfully established a ground of opposition under section 59 of the Act. This conclusion was based on the Opponent's evidence, which included a declaration from its director asserting that the phrase in question was commonly used in the industry and that no use by the Applicant could be identified. The delegate found that, given the descriptive nature of the term and the lack of evidence from the Applicant regarding its intention to use the mark, a prima facie case was made out. The delegate considered it a simple task for the Applicant to provide evidence of its intentions, which it failed to do, thereby strengthening the Opponent's position.

Consequently, the delegate refused to register the trade mark. The Opponent was awarded costs against the Applicant, following the general rule that costs follow the event.