Human Tissue, Trade Marks, and Prior Use: Australian Allografts Wins Partial Registration

Human Tissue, Trade Marks, and Prior Use: Australian Allografts Wins Partial Registration

When two businesses in the same niche sector share a nearly identical name, the resulting trade mark dispute can become intricate. The Australian Allografts case involved two organisations operating in the human tissue and allograft space — one a not-for-profit tissue bank, the other a distributor connecting hospitals and surgeons with tissue suppliers. Both called themselves "Australian Allografts." The outcome was a carefully structured compromise reflecting the commercial reality that both parties had legitimate claims to the name in different contexts.

Background: A Specialised Medical Sector

Australian Tissue Donation Network Limited (ATDN) is a not-for-profit tissue bank — a registered organisation involved in the donation, processing, and supply of human tissue grafts. It registered its trade mark featuring a stylised map of Australia alongside the words AUSTRALIAN ALLOGRAFTS in January 2022.

Australian Allografts Pty Ltd is a commercial distributor acting as an agent and logistics facilitator between hospitals, surgeons, and tissue suppliers. It had been operating under the AUSTRALIAN ALLOGRAFTS name since November 2019 — well before ATDN's priority date — and applied to register its own mark (featuring triangles in place of the letter "A") in November 2022.

ATDN opposed the registration, and Australian Allografts counterpunched with its prior use history.

The Key Battle: Priority of Use

Section 44 of the Trade Marks Act 1995 ordinarily prevents registration of a mark that is deceptively similar to an earlier-filed mark for similar goods or services. ATDN's January 2022 filing date gave it priority over Australian Allografts' November 2022 application. Both marks, when spoken aloud, are aurally identical — "Australian Allografts."

But section 44(4) creates an important exception. If the later applicant can show continuous prior use of its mark before the earlier filer's priority date, it may overcome the section 44 objection for the goods or services in relation to which it can demonstrate that prior use.

Australian Allografts' evidence showed it had been operating under its mark since November 2019 in relation to certain services: retail services for medical goods relating to alloplasts and allografts, administrative services for medical referrals, publication of information about tissue donation, and advisory services. Delegate Emma Sherwood accepted this evidence and found the prior use exception established for those services.

Other Grounds: ATDN Falls Short

ATDN attempted to leverage additional grounds. On section 58A — seeking to establish that ATDN used its mark before Australian Allografts — the evidence was problematic. ATDN's own witness, Stracey, declared that the branding was "finalised on 14 December 2021." WaybackMachine screenshots were inconsistent and couldn't reliably establish earlier use. ATDN failed to prove it used its specific mark before Australian Allografts established its prior rights.

On section 60 (reputation), ATDN couldn't establish sufficient reputation in its specific "AUSTRALIAN ALLOGRAFTS" mark as distinct from its other registered marks that were prominently displayed in its materials. And section 42(b) fell away when section 60 failed.

The Result: A Shaped Registration

The outcome was a partial success for Australian Allografts. The specification was amended to exclude services for which Australian Allografts could not demonstrate prior use before ATDN's priority date. The remaining services — those where prior continuous use was established — proceed to registration.

Practical Takeaways

• Prior use is a powerful defence, but must be documented meticulously. Australian Allografts prevailed because it could prove continuous use from November 2019. Contemporaneous records — contracts, invoices, website archives, correspondence — are essential to establishing this.

• File early — even when you've been operating for years. Australian Allografts' failure to register its mark until 2022, despite operating since 2019, created a vulnerable window. Filing sooner would have established a priority date before ATDN's registration.

• Reputation claims require evidence specific to the challenged mark. Using multiple marks side by side in marketing makes it harder to establish reputation in any one specific mark independently. Evidence of use should clearly identify which mark is being used.

• Not-for-profit status doesn't create a trade mark monopoly. ATDN's role as a tissue bank didn't exempt it from the requirement to prove its specific mark had been used and was known before Australian Allografts established its rights.

Citation: Australian Tissue Donation Network Limited v Australian Allografts Pty Ltd [2026] ATMO 140 (24 July 2026)

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