KSAMS Nominees opposed the registration of the below trade mark, which was applied for by the Centennial Park Cemetery Authority for retailing of flowers in Class 35.

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From its evidence, it was clear to the Hearing Office that the opponent uses its own CENTENNIAL PARK FLORIST trade mark in relation to the retailing of flowers (an example of this use taken from the opponent’s evidence is shown below). Conversely, the applicant has not led any evidence of its use of its own trade mark.

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The Hearing Officer found the two marks to be substantially identical on the basis that a side by side comparison of the two trade marks results in ‘a total impression of resemblance’. This opened the door for a finding that the opponent was the first user of the trade mark in Australia (section 58).

There is a dispute between the opponent and applicant as to the first user of the trade mark, but based on the evidence filed, the Hearing Officer found that the opponent had made use of its substantially identical trade mark prior to the filing, and arguably prior to the adoption and first use of the applicant’s mark.

As it demonstrated earliest use of a substantially identical trade mark, the opponent was successful under section 58 and the application was refused.

To view the Office decision, click here.