Zipper De Do Dah Pty Ltd v Anthony Arthur Barber

[1995] ATMO 14

TRADE MARKS ACT 1955

DECISION OF THE REGISTRAR OF TRADE MARKS
WITH REASONS

Re:      Opposition by ANTHONY ARTHUR BARBER to
           Trade Mark Applications Nos 597611, 597612, 597613 and 597614 in the    Name of ZIPPER DE DO DAH PTY LTD

The trade mark applications were all lodged on 4 March 1993 and consist of the following:

1. The words GIGALOT POSSUM, THE LOST FORESTand various               pictorial devices

1. The words TRACKER JACK, THE LOST FOREST and various   pictorial devices

1. The words SYRACUSE SALT PINCHER, THE LOST FOREST and   various pictorial devices

1. The words FLYING PIGMIE, THE LOST FOREST and various   pictorial devices

The applications were advertised accepted on 17 February 1994 and notice of opposition to the registration of the trade marks in accordance with s49 of the Act was lodged on 4 May 1994. The stated ground of opposition was that the opponent was the proprietor of the trade marks by virtue of authorship of the marks and by prior use of them.

Evidence in support of the opposition became due for service on the applicant on or before 4 August 1994. As no evidence was served by the due date, on 12 August 1994 a standard notice was sent to both the applicant and the opponent notifying them of that fact. A further letter was sent to both parties on 26 September 1994 advising them that that it was then open to either party to request a hearing of the matter. By letter dated 29 September 1994 the applicant requested a hearing. The opposition ultimately came on before me in Melbourne on 8 February 1995. Mr Richard McDonnell of the applicant company appeared on its behalf. The opponent appeared personally.

At the hearing I advised the parties that in the absence of any evidence on the part of the opponent in support of his claim to proprietorship of the trade marks in question I had no option but to dismiss the opposition. The opponent sought to tender a declaration which at that stage of the proceedings I could not accept. In any case since the declaration simply made assertions as to the ownership of copyright in the trade marks I informed him that I did not have jurisdiction to decide the matter. I said I would issue my decision that the opposition would be dismissed.

I therefore direct that, in the absence of any appeal from this decision, the trade marks which are the subject of these opposition proceedings shall proceed to registration. I award costs in the matter to the successful applicant.

Michael Homann

Hearing Officer

24 March 1995