Virgin Mobile (Aust) Pty Ltd v Camille Hardman

This matter concerned an opposition by Virgin Mobile (Aust) Pty Ltd to the registration of the trade mark "RED PAGES" by Camille Hardman. The opposition was heard by Rachel Dunn, a delegate of the Registrar of Trade Marks. The opponent relied on grounds of opposition under sections 41, 58, and 59 of the *Trade Marks Act*.

The court was required to determine whether the trade mark "RED PAGES" was inherently adapted to distinguish the applicant's goods and services from those of other traders under section 41 of the *Trade Marks Act*. Additionally, the court considered whether the applicant intended to use the trade mark in Australia, as per section 59 of the *Trade Marks Act*. The ground of opposition under section 58 was not pursued by the opponent.

Regarding section 59, the court found that the opponent had not provided sufficient evidence to rebut the prima facie presumption that filing a trade mark application indicates an intention to use it. The court reasoned that the opponent's evidence of irregularities in the application process and delays was not enough to shift the onus to the applicant to prove its intention. On the section 41 ground, the court held that while "red" is a common word and colour, the combination "RED PAGES" possessed sufficient inherent distinctiveness, even when applied to goods and services related to the sexual health and lifestyle industry. The court applied the principle from *Mark Foy's Limited v Davies Coop and Company Limited* that a mark should not be assumed to have a definite meaning without reflection, and found that "RED PAGES" did not directly refer to the character or quality of the services without such reflection.

As the opponent had not established any of its grounds of opposition, the court decided that the trade mark application could proceed to registration one month from the date of the decision, subject to any notice of appeal. The opponent was also ordered to pay the applicant's costs.