Red Energy Pty Limited v Registrar of Trade Marks  FCA 1449 (21 September 2018)
Successful appeal by Red Energy against the Registrar’s decision to refuse its divisional application for trademark registration of EVENPAY with a priority date of 9 May 2013 for a broad range of goods and services in classes 9, 16, 35 – 42.
The Registrar’s decision is reported here and the delegate was influenced by the use of ‘evenpay’ by other Australian utilities suppliers.
The Registrar did not file any evidence or submissions in opposition to Red Energy’s appeal.
Beach J noted the presumption of registrability and took the view that EVENPAY does not have an ordinary meaning or signification in respect of the designated goods and services. In the appeal, there was no evidence of third-party descriptive use of EVENPAY as at or even after the priority date, or evidence of the needs of other traders.
As a result, the EVENPAY trade mark application has been accepted and is to advertised on 25 October 2018 for opposition purposes.