Pharaoh applied to register the below CRISTIANA and Unicorn device (1 below) that application was initial rejected on the basis of a prior registration for CRISTIANA Device (2 below) owned by Jonglea.
The citation objection was overcome on the basis of continuous prior use and Jonglea then opposed.
The opposition focused on section 58A(2) (the opponent’s earlier use of the same/similar trade mark) and the opponent supplied evidence of prior and continuous use which pre-dated the use relied on by Pharaoh to overcome the citation objection.
The Hearing Officer noted that acceptance on section 44(4) (as was the case here) could be overridden by section 58A(2). As the opponent had established its prior use of the trade mark, the opposition was successful.
To view the Office decision, click here.
This article is an extract from Spruson & Ferguson’s monthly summary of Australian Trade Mark Office decisions. You can view the entire month’s summary here.
Litigation Team, Trade Marks Team
Trade Marks Team