Zipper De Do Dah Pty Ltd v Anthony Arthur Barber

This decision concerns an opposition by Anthony Arthur Barber to four trade mark applications lodged by Zipper De Do Dah Pty Ltd. The applications, filed on 4 March 1993, comprised various word and pictorial elements, including "GIGALOT POSSUM", "TRACKER JACK", "SYRACUSE SALT PINCHER", and "FLYING PIGMIE", all associated with "THE LOST FOREST". The opposition was lodged on 4 May 1994, on the grounds that Mr Barber was the proprietor of the trade marks by virtue of authorship and prior use.

The Registrar of Trade Marks was required to determine whether the opposition should succeed, given the opponent's failure to file evidence in support of his claim by the due date. A further issue arose regarding the admissibility and relevance of evidence sought to be tendered by the opponent at the hearing, and the Registrar's jurisdiction to consider such evidence.

The Registrar reasoned that under the relevant legislation, the onus was on the opponent to provide evidence to substantiate their claim of proprietorship. As no evidence was served by the due date, and the declaration tendered at the hearing was inadmissible and concerned matters outside the Registrar's jurisdiction (copyright ownership), the opposition could not be sustained. The Registrar therefore dismissed the opposition.

Consequently, the Registrar directed that the trade mark applications proceed to registration and awarded costs to the successful applicant, Zipper De Do Dah Pty Ltd.