1. The remainder of Stanley 2 responds to other aspects of the EIA and provides copies of correspondence between the parties' respective attorneys.

1. On 6 November 2025, the Opponent applied under reg 21.19 to file further evidence, comprising a declaration of Ian Stanley dated 5 November 2025 together with Exhibits IS‑20 to IS‑22 ('Late Evidence'). The prescribed fee accompanied the request.
2. The Opponent submits that the Applicant's written submissions raise challenges to substantial aspects of its evidence that were not previously disputed during the evidence stage. As the matter is to be determined on the papers, the Opponent contends that it has been denied an opportunity to respond and that procedural fairness requires the admission of the Late Evidence.
3. The Applicant opposes the admission of the Late Evidence and argues:
   • the Opponent should have known that to rebut the allegation of non-use, it bears the onus of establishing use or authorised use of the Trade Mark in the Relevant Period and it is incumbent on the Opponent to file its best available evidence at the evidence stage;
   • the information in the Late Evidence was available to the Opponent at the time of filing its evidence;
   • the Opponent has not provided adequate reason or a compelling case for not including the information in its evidence nor explained why it is crucial to my decision; and
   • the Opponent made a strategic decision to be heard by way of written submissions with knowledge that they had no right of reply to the Applicant's written submissions and now seeks to remedy deficiencies in its evidence.
4. Regulation 21.15(4) provides that the Registrar is not bound by rules of evidence and may be informed on any matter in a way that the Registrar reasonably believes to be appropriate. Under reg 21.19, the Registrar may take into account information that is relevant to proceedings. The application of reg 21.19 is discretionary and evidence which is filed outside of the normal evidentiary periods may be considered if there are 'further circumstances that make it reasonable for the material to be taken into account'.[17]
5. The Trade Marks Office Manual of Practice and Procedure ('the Manual') makes it clear that as a general rule evidence that is not filed in time will not be considered by a delegate when deciding an opposition. The Manual notes that there are exceptions to the general rule but a party seeking to rely on evidence filed out of time needs to address matters including the following:
   1. Why the evidence was filed after the due date
   2. If the evidence stage in proceedings has concluded and the matter is ready for determination, why the evidence was not filed earlier
   3. What the evidence shows
   4. Why that information is crucial to the delegate's decision
   5. Why it is in the public interest to have the information considered
   6. What is the balance of convenience for the parties if the information is considered.[18]
6. Further, in Fed Square Pty Ltd v Federation IP Pty Ltd ('Fed Square'), the delegate said:

In order to determine whether or not to take information into account under reg 21.19 it is necessary for an administrative decision maker to consider the nature and significance of the evidence put forward. If that material is of high probative value, that will be a crucial factor in the determination of whether it should be admitted.[19]

The implications of evidence not being filed at all should inform the parties' decisions made around the preparation of the evidence, and it is not sufficient to simply show that such evidence is relevant and there is a possibility that the opposition may fail without it. To allow regulation 21.19 to be utilized in that way may render the requirements for the current extension of time provisions otiose. Rather, there must be further circumstances that make it reasonable for the material to be taken into account. In the current matter and for the reasons set out earlier I am satisfied that they have been in this case.[20]

1. The Late Evidence addresses two issues. First, it responds to the Applicant's contention that the Opponent used images of earplugs resembling the Applicant's products. Secondly, it seeks to address whether ATS's use of the Trade Mark was authorised by the Opponent, including by reference to a Trade Mark Authorisation Agreement dated 1 February 2021 and extracts from the Australian Securities and Investments Commission ('ASIC') for the relevant entities.
2. The Applicant raised the issue of the packaging images in its EIA.[21] The Opponent therefore had an opportunity to address this matter in its EIR and indeed Stanley 2 addresses this issue. It should not have come as a surprise that this issue was developed further in the Applicant's written submissions, nor that those submissions criticised aspects of the Opponent's evidence. This is a common feature of opposition proceedings.
3. As to authorised use, the wording of s 92(4)(b) makes clear that an opponent must establish use or authorised use of the trade mark during the relevant period. Demonstrating authorised use within the meaning of s 8 forms part of the Opponent's evidentiary burden. While the Opponent addressed the relationship between itself and ATS in Stanley 2 at [2]-[3], the information now sought to be introduced was available at the time the evidence was filed.
4. The information in the Late Evidence was available to the Opponent at the time of filing its evidence and both issues had been addressed by the Opponent to some degree in its evidence. The Opponent could have filed more detailed information on the issues at the evidentiary stage. I am not persuaded by the Opponent's submission that the Applicant has challenged substantial parts of the Opponent's evidence not previously disputed. The packaging issue was raised by the Applicant in its EIA and it should have been apparent to the Opponent that they need to establish use or authorised use of the Trade Mark in the Relevant Period. In my view, the Opponent could reasonably have anticipated the need to address these issues and apparently did so given that both issues are addressed in the EIR, albeit not in as fulsome manner as the Opponent would like with the benefit of the Applicant's submissions. As the delegate noted in TWG Tea, '[t]here remains an indisputable onus upon a party submitting evidence to exercise careful oversight of that process at all times'.[22]
5. Further, the Opponent's request does not adequately address several of the factors identified in the Manual. In particular, it does not explain why the Late Evidence, which was apparently available earlier, was not filed during the normal evidentiary period, nor does it demonstrate that the material is crucial to my decision.
6. In these circumstances, I am not satisfied that there are further circumstances that make it reasonable to take the Late Evidence into account. I therefore decline to admit the Late Evidence and have not considered it in reaching my decision.

1. To rebut the allegation of non‑use, the Opponent must establish that the Trade Mark was used, or authorised to be used, in Australia in the course of trade during the Relevant Period in relation to the Registered Goods, and that any such use was in good faith.

1. The Opponent submits that during the Relevant Period it undertook preparatory steps to use the Trade Mark, promoted the Registered Goods under the Trade Mark and made sales of those goods.
2. There is no dispute that the goods featured in the Opponent's evidence are ear plugs and hence any use is for the Registered Goods.
3. The preparatory steps relied upon by the Opponent include its request in July 2022 for a Fiverr freelance contractor to design packaging, the engagement of a contractor in August 2023 who provided one generic packaging version and six versions incorporating different characters. The Opponent ordered packaging based on these designs on 4 September 2023. In terms of promotional activities undertaken during the Relevant Period, the Opponent notes that it promoted its goods under the Trade Mark by emailing its existing customer WHSmith on 31 August 2023 and advertising the goods on Facebook on 4 November 2023. The Opponent also relies on a sale of goods under the Trade Mark to Alita in January 2024.
4. The Applicant disputes that these activities constitute use of the Trade Mark in the course of trade. The Applicant refers to Bennett J's comments in Somers Enterprises Australia Pty Ltd v Basefun Pty Ltd[23] where her Honour drew a distinction between preliminary steps and preparatory steps for sale of the goods. In particular, the Applicant submits that the Draft Packaging relied on was preliminary in nature and never used commercially. In relation to the purchase order from Alita, the Applicant notes that this document is unsupported by evidence of supply of the goods and there is no corresponding invoice. Moreover, the email from Alita Sales dated 16 February 2024[24] advising Alita' representatives of ATS' Happy Ears silicone ear plugs was sent by Amy Stanley (and falls outside the Relevant Period). The Applicant seems to be suggesting that Ms Stanley is related to Mr Stanley of the Opponent and hence was not a genuine sale.
5. Whilst there are deficiencies in the Opponent's evidence, I am satisfied, having regard to the totality of the material before me, that the Trade Mark was used in Australia during the Relevant Period for the Registered Goods. The Opponent commissioned packaging designs bearing the Trade Mark, ordered packaging based on those designs, and promoted the Registered Goods to an existing customer and more broadly on social media.
6. I do not consider the Applicant's criticisms of the packaging to be determinative. Whether the Draft Packaging included images resembling the Applicant's goods, or whether those designs were ultimately adopted, does not detract from the fact that Opponent had taken steps to adopt packaging with a view to using the Trade Mark in the course of trade. Nor do I consider Mr Stanley's statements that the designs were preliminary to be an indication that undermine the conclusion that the Opponent had moved beyond mere intention and taken preparatory steps directed towards commercial use of the Trade Mark.
7. Whilst the Applicant is critical of the Facebook post featuring the Opponent's Goods on the basis that it doesn't specifically state that the goods are available for purchase and was posted shortly after the Applicant wrote to the Opponent alleging non-use, the most reasonable explanation for featuring the goods is to promote them for sale. Although the documentation regarding engagement of the Fiverr contractor does not indicate the year of engagement, the days and months fits with the timeline for promotion and sales of the goods under the mark.
8. I am satisfied that the sale to Alita in January 2024 was a genuine commercial transaction. Although the Opponent has relied on purchase orders rather than invoices, there is no reason to doubt that the transaction occurred. The subsequent correspondence between the Opponent and Alita, including communications with Alita's sales representatives shortly after the Relevant Period, supports the conclusion that the Registered Goods were being offered and supplied in the course of trade. It is not necessary that the goods the subject of the purchase order were supplied within the Relevant Period. Further, the fact that Amy Stanley of Alita may be a relative of Mr Stanley does not undermine the genuineness of the transaction. The correspondence in evidence shows that the Opponent also dealt with Alita Sales' Managing Director, Nicole Holmes. In addition, the extract from the Opponent's website demonstrates that ATS promotes the availability of its products through Alita to pharmacies seeking to stock those goods. In these circumstances, even in the absence of an invoice, there is no reason to doubt that the Opponent had offered for sale, and Alita was seeking to acquire, the Registered Goods under the Trade Mark during the Relevant Period. The subsequent purchase order shortly after the Relevant Period further supports this conclusion.

1. The next question is whether the use was by the trade mark owner or with its authority[25]. Section 8 provides that an authorised user is a person who uses the mark under the control of the owner.
2. The Applicant submits that there is insufficient evidence of authorisation or control by the Opponent in relation to the use of the Trade Mark by ATS. In particular, the Applicant points to notes that Mr Stanley has not claimed to be the sole director nor provided proof of this issue nor the shareholdings of the entities.
3. Mr Stanley's evidence is that the Opponent and ATS are part of the same corporate group and that he is the director and owner of both companies. Stanley 1 describes the Opponent as the 'Asset holding and former trading entity' and ATS as the 'current trading entity'. In support of this claim, Stanley 1 exhibits the Australian Business Number ('ABN') details of the Opponent for the Australian Business Register's ABN lookup.[26] This extract lists the treading name of the Opponent as 'Australian Travel Safe'. In addition, the emails at Exhibit IS-08 and Confidential Exhibit IS-14 of Stanley 1 are signed off by Mr Stanley as 'Managing Director' of ATS. I also note that Mr Stanley's contact details are listed on the ATS website exhibited to Smith and that the address for ATS on that website is the same as the Opponent's address recorded on the Register for the Trade Mark. In my view, Mr Stanley's claim to be the director and owner of both companies can properly be interpreted as indicating that he is the sole director. Whilst the Opponent could have put this matter beyond any doubt by providing ASIC extracts for the entities in its evidence so too could the Applicant have put on evidence disputing Mr Stanley's claim. There is no evidence of any one else having involvement in ATS with all of the correspondence and details for this company refer solely to Mr Stanley.
4. I am satisfied on the Opponent's evidence, and in the absence of any evidence to the contrary, that ATS is the trading entity of the Opponent and is authorised to use the Trade Mark.

1. The final question is whether the Opponent's use of the Trade Mark is in good faith. In Liquideng Farm Supplies Pty Ltd v Liquid Engineering 2003 Pty Ltd,[27] the Full Federal Court held that 'good faith' only requires a genuine intention to use the trade mark for commercial purposes and does not involve any element of honesty or subjective good intention.[28]
2. I am satisfied that the Opponent's use of the Trade Mark in the Relevant Period was for a genuine commercial purpose and hence the allegation of non-use is rebutted.

1. The Opponent has successfully rebutted the allegation of non-use and accordingly, I direct that registration 1565044 is to remain on the Register for the Registered Goods. If the Registrar is served with a notice of appeal, then the Registration shall be dealt with as the Court sees fit.
2. The parties have requested an award of costs. Further, the Opponent has requested additional discretionary costs on the basis that the Applicant initiated the proceedings with no prospects for success. The Applicant disputes this claim.
3. I agree with the Applicant that the Opponent's request for additional costs is unfounded and inappropriate. I award costs against the Applicant under s 221 in accordance with Schedule 8 of the Regulations.

[1] Unless otherwise stated, each reference to a section or regulation is a reference to a section of the Trade Marks Act 1995 (Cth) ('Act') or regulation of the Trade Marks Regulations 1995 (Cth) ('Regulations'), respectively.

[2] Per s 93(2) prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) sch 1 pt 3 as applies in the present matter. The updated s 93(2) applies to trade marks filed from 24 February 2019 onwards.

[3] Pfizer Products Inc. v Karam [2006] FCA 1663; Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ), albeit in respect of an action opposing registration rather than removal.

[4] [1998] FCA 440 (citations omitted).

[5] [2001] FCA 261, [16].

[6] Great White Shark Enterprises Inc v Joose Apparel Pty Ltd [1998] ATMO 8 (Delegate I. Forno).

[8] Nodoz Trade Mark (1962) RPC 1, 7 (Wilberforce J).

[17] TWG Tea Company Pte Ltd v Tsit Wing International Company Limited ('TWG Tea') [2015] ATMO 64, [46] (Hearing Officer C. Murray).

[18] Trade Marks Office Manual of Practice and Procedure ('Manual'), Part 51.2.5.

[19] [2015] ATMO 42, [50] (Hearing Officer H. Wilson).

[23] [2025] FCA 218, [64].

[27] [2009] FCAFC 7, [56] (Tamberlin, Sundberg and Besanko JJ).

[28] See for example Jianqing Ltd v Linhope International Limited [2022] ATMO 169.