Beats Electronics, LLC v LG Electronics Inc

Beats Electronics, LLC (the opponent) opposed two trade mark applications by LG Electronics Inc (the applicant) for trade mark application numbers 1504324 and 1662449. The opposition was based on several grounds under the *Trade Marks Act 1995* (Cth), including sections 42(b), 44, 60, and 62A. The onus was on the opponent to establish at least one ground of opposition for each trade mark in relation to all of the applicant's services, with the standard of proof being the balance of probabilities.

The primary legal issue before the Hearing Officer, Bianca Irgang, was whether the opponent had established a ground of opposition under section 60 of the Act. This section allows for opposition if another trade mark had acquired a reputation in Australia before the priority date of the applicant's mark, and the use of the applicant's mark would be likely to deceive or cause confusion due to that reputation. Unlike other grounds, section 60 does not require the goods or services to be similar, nor does it mandate that the trade marks be substantially identical or deceptively similar.

The Hearing Officer found that the opponent had met its onus in establishing the ground of opposition under section 60 for both trade mark applications. This conclusion was reached by determining whether the opponent's trade mark(s) had been recognised by the public generally, or at least by a significant number of persons in the speaker and headphone marketplace, before the relevant priority dates. The Hearing Officer was satisfied that the use of the applicant's trade marks for the designated goods would likely deceive or cause confusion amongst relevant purchasers due to the established reputation of the opponent's mark.

Accordingly, the Hearing Officer refused to register trade mark application numbers 1504324 and 1662449. Costs were awarded against the applicant in accordance with Schedule 8 of the Regulations.