Trayon Campers Pty Ltd v Larkenlea Nominees Pty Ltd as Trustee for GCI Group

This matter concerned oppositions by Trayon Campers Pty Ltd to the registration of two trade mark applications, numbers 2015117 and 2015118, both for the mark "GCI TRAYTEC" (one figurative, one word mark), filed by Larkenlea Nominees Pty Ltd as Trustee for GCI Group. The oppositions were brought under section 60 of the *Trade Marks Act 1995* (Cth), which allows for opposition if another trade mark had acquired a reputation in Australia before the priority date of the opposed mark, and the use of the opposed mark would be likely to deceive or cause confusion due to that reputation. The Opponent, Trayon Campers, alleged that its mark "TRAYTEK", used since approximately 2006 for ute tray structures, campers, and related products, had acquired such a reputation.

The Hearing Officer was required to determine whether the Opponent had established that its trade mark "TRAYTEK" had acquired a reputation in Australia by the priority date of the opposed marks, and if so, whether the use of the "GCI TRAYTEC" marks would be likely to deceive or cause confusion as a result of that reputation. The onus was on the Opponent to prove these elements on the balance of probabilities. The Hearing Officer also considered a preliminary objection raised by the Applicant regarding the admissibility of certain evidence filed by the Opponent, noting that the absence of documentary evidence significantly diminished its probative value.

In reaching her decision, the Hearing Officer applied the principles established in cases such as *McCormick & Co Inc v McCormick* and *Re ConAgra Inc v McCain Foods (Aust) Pty Ltd*, which define "reputation" as the recognition of a trade mark by the public generally, provable through various means including advertising and exposure within the jurisdiction. The Hearing Officer also referred to the *Hugo Boss AG* decision, which highlights that a trade mark's reputation derives from both sales figures and its esteem or image projected to the public. Ultimately, the Hearing Officer found that the Opponent had not established a ground of opposition under section 60 of the Act.

Consequently, the Hearing Officer decided that both trade mark applications, numbers 2015117 and 2015118, could proceed to registration one month from the date of the decision. The Hearing Officer also awarded costs against the Opponent in respect of both oppositions, applying the usual principle that costs follow the event.