Urban Clean IP Pty Ltd v Leviathan Consolidated Pty Ltd

This matter concerned an opposition by Urban Clean IP Pty Ltd (the Opponent) to the registration of a trade mark by Leviathan Consolidated Pty Ltd (the Applicant). The Opponent filed a Notice of Intention to Oppose and a Statement of Grounds and Particulars, raising grounds under sections 44, 58A, and 60 of the Act. The Opponent provided a declaration in support of its opposition, but the Applicant did not file evidence in reply. The hearing was conducted by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were to determine the extent to which the grounds of opposition relied upon by the Opponent had been established, and consequently, whether to refuse or register the Applicant's trade mark. The Opponent claimed to be the owner of registered trade marks related to the "Urban Clean" franchise system and asserted continuous use of these marks since 2008, offering cleaning, advertising, and business management services. The Applicant sought to file evidence out of time, which was not admitted by the delegate.

The delegate found that the Opponent had failed to establish any of the grounds of opposition it had nominated. Specifically, the ground of opposition pursuant to section 60 of the Act was not established. Consequently, the delegate decided that the Applicant's trade mark application could proceed to registration, subject to any appeal. The delegate also awarded costs against the Opponent in favour of the Applicant, applying the general rule that costs follow the event.