Whiston Management Pty Ltd v Mathew Willian Stanton & Lynette Fay Jenkins

Whiston Management Pty Ltd opposed the registration of the trade mark "Boss Brain" (application number 2072506) in Class 41, filed by Mathew William Stanton and Lynette Fay Jenkins. The opposition was heard by Debrett Lyons, a Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether the opponent, Whiston Management Pty Ltd, had established any grounds for opposing the registration of the trade mark. Specifically, the opposition relied on a ground under section 58 of the *Trade Marks Act 1995* (Cth), which concerns the use of a trade mark by the opponent prior to the filing date of the opposed application.

The Hearing Officer found that Whiston Management Pty Ltd had failed to provide any evidence to support its claim of using the trade mark "Boss Brain" since August 2019 for services that might be of the same kind as those applied for. As the burden of proof rested with the opponent, and no evidence was adduced, the section 58 ground of opposition was not established. Consequently, the Hearing Officer ordered that the trade mark be registered, with a direction that registration would be stayed pending any appeal. The applicants were awarded costs.