The Waltzing Matilda Centre Limited v Jolly Swagman Pty Ltd

The Waltzing Matilda Centre Limited (the opponent) opposed the registration of the trade mark "WALTZING MATILDA" by Jolly Swagmen Pty Ltd (the applicant). Following the opponent's request to schedule the opposition for a hearing, the applicant sought a suspension of the proceedings due to the appointment of an administrator to Jolly Swagmen and a subsequent dispute over the ownership of the trade mark application. The Registrar of Trade Marks convened a supplementary hearing to determine whether to suspend the opposition hearing.

The primary legal issue before the Registrar was whether to grant the applicant's request to suspend the substantive opposition hearing, or to proceed with scheduling it as requested by the opponent. This involved considering the impact of the administrator's appointment and the ongoing ownership dispute on the applicant's ability to be represented and to defend the opposition, and whether proceeding with the hearing would breach natural justice principles. The Registrar also had to consider the interpretation of "applicant" under the *Trade Marks Act 1995* and the balance of convenience between the parties.

The Registrar reasoned that while Jolly Swagmen remained the registered applicant, the *Trade Marks Act 1995* allowed for the assignment of pending trade mark applications. Given that WM Productions Pty Ltd claimed ownership and intended to pursue the application once ownership was confirmed by the Court, the Registrar considered it appropriate to take into account this prospective assignee. The Registrar found that no breach of natural justice had occurred or would occur by deferring the hearing, as the public interest in accurate record-keeping was not prejudiced by a pending application, and the balance of convenience favoured a short delay for the applicant, who had significant interests to protect.

Consequently, the Registrar directed that the hearing of the substantive opposition be held over until the beginning of November 2001, with the Trade Marks Office to propose a hearing date in November thereafter. The Registrar also determined that no award of costs would be made, as the hearing was convened to resolve procedural issues rather than being sought by either party for the substantive matter.