Wild Marks, Inc v Specialty Cereals Pty Ltd

This decision concerns an opposition by Wild Marks, Inc. (the opponent) to a trade mark application by Specialty Cereals Pty Ltd (the applicant). The matter came before Hearing Officer Michael Kirov.

The primary legal issue before the Hearing Officer was whether the opponent had discharged its onus to establish the grounds of its opposition, particularly in the absence of evidence filed in support. The Hearing Officer also considered whether the existence of the opponent's earlier trade mark registrations, specifically mentioned in the Notice of Opposition, was sufficient to raise issues that the applicant needed to address, even without supporting evidence.

The Hearing Officer reasoned that, generally, the onus is on the opponent to establish its grounds of opposition before any onus falls on the applicant to refute them. This principle is supported by case law, including *Medley Distilling Co v Croakers Gully Australia* and *Wal-Mart Stores Inc v Ozark-London Ltd*, which indicate that an opposition should not be established if the opponent fails to file evidence in support. However, the Hearing Officer noted an exception, as observed in *Quiksilver International Pty Ltd v s. Oliver Bernd Freier GmbH & Co. KG*, where an opposition based on section 44 of the *Trade Marks Act 1995* (Cth) might succeed without evidence if the earlier mark is clearly specified in the Notice of Opposition. In this instance, the opponent's earlier registrations for the identical "WILD OATS" mark, covering similar goods or services, were specified in the Notice. The Hearing Officer concluded that these registrations, on their face, raised issues that the applicant needed to address, and therefore the section 44 ground was discussed further. The remaining grounds of opposition were not established.