Watta Watta Pty Ltd v Gavin O'Mahoney & Associates

This matter concerned an opposition filed by Gavin O’Mahoney & Associates against the registration of the trade mark INTENSITY (application number 742588) by Watt Watta Pty Ltd. The trade mark was sought for use in relation to wet suits and related items. The opposition was filed after the trade mark was advertised for acceptance. Watt Watta Pty Ltd sought summary dismissal of the opposition on the grounds of alleged informalities in the notice of opposition and the opponent's status as a legal entity.

The delegate of the Registrar of Trade Marks was required to determine whether the opposition should be dismissed due to the informalities in the notice of opposition and whether Gavin O’Mahoney & Associates had the legal standing to oppose the registration. The delegate also had to consider the grounds of opposition, which alleged that a prior trade mark (number 565476) constituted a bar to registration under section 44(3) of the *Trade Marks Act 1995*, and that evidence supporting the acceptance of the INTENSITY mark was fabricated under section 44(4).

The delegate found that the informalities in the notice of opposition could be addressed under section 66 of the *Trade Marks Act 1995*. Furthermore, the delegate determined that Gavin O’Mahoney & Associates was a "person" within the meaning of section 6 of the Act, which includes bodies of persons whether incorporated or not, and therefore had the right to oppose under section 52. Regarding the grounds of opposition, the delegate noted that trade mark 565476 had been removed from the Register and thus did not constitute an objection under section 44. The allegation of fabricated evidence was found to be unsupported and baseless.

Consequently, the delegate dismissed the opposition. Watt Watta Pty Ltd was awarded costs in accordance with Schedule 8 of the *Trade Marks Regulations 1995*.