Date: 14 April 2025
Court: Australian Trade Marks Office (ATMO)
Delegate: Anne Makrigiorgos
Judgment date: 19 March 2025
Catchwords: Trade Marks – opposition to registration – use of trade mark is contrary to law – misleading or deceptive conduct

Background:

In The Lord Howe Island Holdings Pty Ltd v Lord Howe Island Brewing Co Pty Ltd [2025] ATMO 60, the registration of trade mark number 2143310 for Lord Howe Island Brewing Co. & Bird in shield device (Trade Mark) by Lord Howe Island Brewing Co. Pty Ltd (Applicant) was opposed by The Lord Howe Island Holdings Pty Ltd (Opponent). The opposition relied on sections 42(b), 43, and 61 of the Trade Marks Act 1995 (Cth), with the Opponent carrying the burden of establishing at least one ground of opposition on the balance of probabilities.

The ground under s 42(b) was successfully established on the basis that use of the Trade Mark would contravene ss 18 and 29(1)(k) of the Australian Consumer Law (ACL), found in Part XI, Division 2, Subdivision A of the Competition and Consumer Act 2010 (Cth).

An endorsement entered in the application…