THE RACK'N STACK WAREHOUSE (ADMIN) PTY LTD V THE RACK'N STACK WAREHOUSE SEQLD PTY LTD [2014] ATMO 122

The opponent challenged the registration of the below trade mark on the basis that it was the owner of the trade mark and the applicant was, therefore, not entitled to register it.

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The opponent is the owner of a prior registration in Australia for the identical trade mark, covering the same goods/services as the application that was the subject of this opposition. The opponent’s earlier mark was raised as a citation objection, but this was overcome through the filing of evidence of honest concurrent use.

From the evidence led, the Hearing Officer came to the view that the opponent had licenced the applicant to use the trade mark. However, the opponent had never intended to, nor actually did, convey any proprietary rights in the trade mark to the applicant. The Hearing Officer was, therefore, able to find that the opponent was the owner of the trade mark and the applicant was not entitled to register it.

The application is to be refused.

To view the Office decision, click here.