Bing Boy IP Pty Ltd v Bing Go Street Food

This decision concerns an opposition filed by Bing Boy IP Pty Ltd (the Opponent) against the registration of a trade mark by Bing Go Street Food (the Applicant). The Opponent operates a successful chain of franchised restaurants established in 2011, licensing its trade marks to third parties. The opposition was decided by a delegate of the Registrar of Trade Marks pursuant to section 55 of the Act.

The primary legal issue before the delegate was whether the Opponent had established any grounds for opposing the Applicant's trade mark application. The Opponent bore the onus of proving its case on the balance of probabilities, with the relevant date for determining the rights of the parties being the filing date of the application, 7 March 2014.

The delegate found that the Opponent had successfully established a ground of opposition under section 44 of the Act. This conclusion was reached based on the evidence filed by the Opponent, which included declarations and exhibits. Notably, the evidence indicated a connection between a director of the Applicant and a company that had previously enquired about a franchise opportunity with the Opponent, suggesting a potential conflict or confusion. The Applicant did not file any evidence or engage in the proceedings after filing its Notice of Intention to Defend.

Consequently, the delegate decided to refuse the registration of the trade mark application.