The Opponent (Midmark Corporation) was successful in its opposition to extension of protection for an International Registration Designating Australia (IRDA) filed in the name of Ritter Concept Gmbh. The mark concerned was "RITTER" and the goods covered by the IRDA included dental apparatus, equipment and instruments, lighting apparatus for dentists, and cupboards and tables for dental care instruments (falling in classes 10, 11 and 20).
The Opponent successfully established first use of the RITTER trade mark in Australia for goods which are the same kind of thing as those covered by the IRDA. Extension of protection was therefore refused for all goods.
Although the Holder sought to establish first use of the mark by relying (in part) on evidence from a university professor in dental sciences who attested to the Holder's "RITTER" branded goods being held in a dental museum during the 1950's, the Hearing Officer was not satisfied that this was sufficient to establish use as a trade mark, and also pointed out that there was an unexplained gap in trade mark use for some thirty years after the 1950's.
The decision confirms that assertions, on their own, cannot establish prior ownership of a trade mark (although they may be given some weight in proceedings before the Registrar of Trade Marks) and that demonstrated instances of trade mark use must be provided.
The appeal period has passed without the Holder filing an appeal.
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.
Principal / Solicitor / Trade Mark Attorney
Litigation Team, Trade Marks Team
Associate / Trade Mark Attorney
Trade Marks Team