AGCARE BIOTECH PTY LTD V CROP SMART PTY LTD [2015] ATMO 7

This matter concerned an opposition filed by AgCare to the registration of Crop Smart’s trade mark SMART and an opposition by AgCare to the non-use removal of its trade mark SMART 450 filed by Crop Smart.

First, the Hearing Officer considered the opposition against the Crop Smart application for SMART. The opponent pressed section 58A, alleging that it was the earlier user of the ‘SMART’ trade mark (through use of its SMART 450 trade mark) in Australia.

The Hearing Officer, after careful review of the evidence, found that the trade marks SMART and SMART 450 were deceptively similar, used in relation to the same goods and the use of the SMART 450 trade mark occurred prior to the filing of the SMART application.

Accordingly, the opposition succeeded under section 58A. The applicant attempted to argue that in any event its application should be accepted pursuant to the honest concurrent use of its trade mark in Australia (which may also give rise to acceptance under other circumstances), however, the Hearing Officer noted that there was no comfort to be found for the applicant in this regard, as section 58A cannot be overruled in that manner.

Finally, on the opposition to the non-use, the Hearing Officer found that a single use (supported by more circumspect evidence) was enough to demonstrate sufficient use of the trade mark in the relevant period. The opposition to the non-use removal application was, therefore, successful.

To view the Office decision, click here.