Airbnb, Inc v LLWR Investments Pty Ltd

This matter concerned an opposition by LLWR Investments Pty Ltd (the Opponent) to the registration of a trade mark by Airbnb, Inc. (the Applicant). The Opponent sought to prevent the registration of the Applicant's trade mark based on its own established reputation in Australia under section 60 of the relevant Act. The dispute centred on whether the Opponent's existing trade marks had acquired sufficient reputation in Australia such that the Applicant's proposed trade mark would be likely to deceive or cause confusion.

The court was required to determine whether the Opponent had established that its "AIR BNB Trade Mark" had acquired a reputation in Australia among the relevant market, or a significant portion thereof, prior to the priority date of the Applicant's trade mark application. Furthermore, the court had to assess whether, due to this established reputation, the use of the Applicant's trade mark would be likely to cause deception or confusion among the public. Unlike other provisions, section 60 did not necessitate a high degree of similarity between the services offered by the parties, nor did it require the trade marks themselves to be substantially identical or deceptively similar, although the evidence indicated that both parties were involved in online accommodation sourcing and booking services.

In reaching its decision, the court considered the evidence presented by both parties, including declarations from their representatives. The court applied the principles outlined in *McCormick & Co Inc v McCormick*, which, referencing *ConAgra Inc v McCain Foods (Aust) Pty Ltd*, indicated that reputation could be proven through various means such as advertising and a high volume of sales coupled with substantial expenditure on promotions. The court found that the Opponent had successfully discharged its onus of proof regarding the ground of opposition under section 60. Consequently, the court ordered that the Applicant's trade mark application be refused and awarded costs against the Applicant.