Carole Anne Bunter v SecureView Australia Pty Ltd  ATMO 86
- In this matter SecureView Australia Pty Ltd of Oyster Bay, New South Wales, (‘the applicant’) has applied to register a trade mark under the Trade Marks Act 1995 (‘the Act’). Current details of the application appear below:
- The application was examined in compliance with section 31 of the Act and the opposed trade mark was advertised as accepted for possible registration on 28 February 2008 in the Australian Official Journal of Trade Marks.
- On 26 May 2008, Carole Anne Bunter (‘the opponent’) served and filed Notice of Opposition (‘the Notice’) to the registration of the opposed trade mark. The Notice recites most of the grounds available under the Act and does refer to a ground under section 58 (under which, I consider, this matter is most conveniently and obviously decided). Section 58 was also amongst those grounds argued at the hearing which I conducted as a delegate of the Registrar of Trade Marks in Sydney on 20 July 2010. At the hearing the opponent relied on written submissions by P.A. Madigan of Counsel, instructed by Hazan Hollander ; the applicant was represented by Ben Fitzpatrick of Counsel, instructed by Shelton IP, patent and trade mark attorneys.
- For the sake of brevity in this matter I will discuss only the evidence of the parties that is essential to my decision under the section 58 ground.
- The evidence in this matter comprises five statutory declarations. The opponent has served and filed the declaration of Carole Anne Bunter dated 25 November 2008 in support of the opposition. The applicant has served and filed the declarations of Philip Hendrick Van Der Woerd dated 19 November 2009 and the declarations of Samuel John Hallahan dated 23 September 2009, 5 November 2009, and 17 December 2009. The opponent has served and filed in reply the declaration of Carole Anne Bunter dated 9 March 2010. There are also documents in evidence supplied by the opponent as the result of a request by the applicant for production of documents however these are incidental to my decision and I will not discuss them.
- In her declaration, the opponent states that she has been making fly screens, window screens, screen doors and like products since approximately 1984, initially in partnership, then as a sole proprietor under the business name Buzzoff Flyscreens Security & Screening Systems. This business is, says the opponent, centered in the Newcastle and Lake Macquarie region of New South Wales, but additionally operates in Sydney and the Central Coast region of New South Wales, and sells through distributors across Australia.
- The opponent declares...
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