The Timberland Company v Alison Waite

This matter concerned an opposition by The Timberland Company to two trade mark applications by Alison Waite. The opposition was based on several grounds under the *Trade Marks Act 1995* (Cth), but ultimately only grounds relating to Sections 44, 60, and 62A of the Act were pursued. The evidence before the Hearing Officer consisted solely of a statutory declaration from Michelle B. Hanson, Assistant General Counsel and Assistant Secretary for The Timberland Company. This evidence detailed the extensive use and registration of the "TIMBERLAND" trade mark in Australia and internationally for footwear and a wide range of clothing products, with significant sales revenue.

The legal issues before the Hearing Officer were whether the applications should be refused registration based on the grounds of opposition raised under Sections 44, 60, and 62A of the *Trade Marks Act 1995*. Section 44 concerns the identity or similarity of trade marks and goods or services, Section 60 relates to the use of a trade mark in relation to goods or services that are the same or deceptively similar to goods or services in relation to which a registered trade mark has been used, and Section 62A addresses the registration of a trade mark in bad faith.

The Hearing Officer found that the ground of opposition under Section 62A was not established, as no sufficient argument was presented to warrant an inference of improper conduct or unacceptable commercial behaviour by the applicant. Consequently, the opposition was dismissed on all grounds. The Hearing Officer ordered that the trade mark applications could proceed to registration one month from the date of the decision, unless an appeal was filed. Costs were awarded against the Opponent, taking into account the Applicant's lack of participation in the proceedings.