28 March, 2014

Southcorp Brands Pty Ltd v CAN Industries Pty Ltd [2014] ATMO 27

Southcorp Brands Pty Ltd v CAN Industries Pty Ltd [2014] ATMO 27

This cased concerned an opposition to an application to register the word mark 707 ESTATE in respect of class 35: export and import agency and promotion services but not transport.

The opponent opposed the mark on the basis that the applicant did not intend to use the mark (section 59 of the Trade Marks Act). The evidence of the opponent showed use of the mark in relation to wines, but not at all in relation to services of any kind, and it was the opponent’s submission of the opponent that given there was virtually no response to any communication in respect of the case before the office, that there was no intention to use the trade mark.

There was in evidence use of the mark by the trade mark applicant in respect of wine, such goods being mentioned on the original application, however this was deleted in response to an examination by the Trade Marks Office (such deletion having been suggested by the Examiner).

The Delegate noted that a trade mark applicant enjoys the prima facie presumption that there is an intention to use the mark by the very act of filing the application. The Delegate also noted however that the failure to respond to correspondence concerning the matter allowed it to draw an evidential inference that the applicant does not intend to use the mark in respect of the services for which it has sought registration.  The application was refused.

To view the Office decision, click here.

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