Trade Mark application numbers 1874318 and 1874320 (36) – CRESCENT WEALTH (Figurative) – in the name of Crescent Wealth Investments Australasia Pty Ltd

This matter concerned trade mark application numbers 1874318 and 1874320 for the figurative mark "CRESCENT WEALTH", filed by Crescent Wealth Investments Australasia Pty Ltd. The applicant requested a hearing before the Registrar of Trade Marks under section 33(4) of the *Trade Marks Act 1995* (Cth) concerning grounds for rejection raised by the examiner under sections 42(b) and 44 of the Act. The hearing was conducted by a delegate of the Registrar, Nicholas Smith, who considered written and oral submissions, as well as a declaration from the applicant's Managing Director.

The primary legal issues before the delegate were whether the grounds for rejection under sections 42(b) and 44 of the *Trade Marks Act 1995* were established. Specifically, section 44(2) requires rejection if an applicant's trade mark is substantially identical or deceptively similar to a registered trade mark for similar services, and the applicant's priority date is not earlier than the other trade mark's priority date. However, section 44(4) provides an exception where the Registrar may accept an application if satisfied that the applicant, or their predecessor in title, has continuously used the trade mark for a period beginning before the priority date of the other trade mark and ending on the applicant's priority date.

The delegate's reasoning focused on the application of section 44(4). The delegate noted that the purpose of the hearing was a fresh consideration of the grounds for rejection, not a review of the examiner's decision. After considering the evidence, including the Yassine Declaration, and the submissions, the delegate was not satisfied that the grounds for rejection under section 42(b) or section 44 of the Act had been established. The delegate applied the principle that the Registrar must be satisfied on the balance of probabilities that a ground for rejection exists, otherwise an application is presumed registrable.

Consequently, the delegate accepted the applications for registration of the trade marks. The delegate was not satisfied that there were grounds for rejection under sections 42(b) and 44 of the Act, and therefore, pursuant to section 33 of the Act, the applications were accepted.