NCL Corporation Ltd v Norwegian Brand Ltd

[2025] FCA 1613

Federal Court of Australia18 December 2025

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Intellectual Property
2. › trade marks
3. › international registration designating Australia
4. › objection to extension of international protection to Australia
5. › whether trade mark applicant had intention to use mark in Australia
6. › where trade mark applicant did not participate in appeal proceeding
7. › no intention to use found
1. Practice and Procedure
2. › international service
3. › service of notice of appeal on IRDA applicant
4. › where leave given for international service pursuant to r 10.44 of the Federal Court Rules 2011 (Cth)

Quick Take

The Court allowed an appeal from the Registrar's delegate and refused extension of protection to Australia for two internationally registered trade marks, finding on the s 59(a) ground that Norwegian Brand lacked a real and definite intention to use or authorise use of the marks in Australia at the filing date. The Court held that the opponent (NCL) established a prima facie case of lack of intention based on evidence of merely tentative and contingent plans, absence of any actual use or business presence in Australia over seven years, and the applicant's failure to participate in the de novo appeal, at which point the onus shifted to the applicant who adduced no evidence. The delegate's costs order against NCL was set aside, but no costs order was made in NCL's favour for the proceeding below because NCL succeeded on a ground not pressed before the delegate and relied on significantly supplemented evidence on appeal.