Bumble Holding Limited v Aggregated Demand Pty Ltd

This matter concerned an opposition by Bumble Holding Limited (the Opponent) against the trade mark application of Aggregated Demand Pty Ltd (the Applicant). The dispute centred on whether the Applicant had the requisite intention to use its proposed trade mark, "BUYASHIVE & Device," at the time of filing its application. The decision was made by Louise Tuohy, Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was to determine whether the Opponent had established a prima facie case that the Applicant lacked the intention to use its trade mark in relation to the specified goods and services, as required by section 59 of the *Trade Marks Act 1995* (Cth). This involved assessing the evidence presented by both parties regarding the Applicant's business plans, preparations for launch, and any potential disruption caused by the opposition proceedings.

The Hearing Officer considered the difficulty in establishing a lack of intention to use, noting that it is often challenging for an opponent to succeed on this ground due to the subjective nature of intention and the presumption of intention flowing from an application for registration. The Opponent argued that its pre-commencement letter put the Applicant on notice of the section 59 ground and highlighted the lack of use. However, the Hearing Officer found that while the Opponent had shown the Applicant had not used the mark at the relevant date, it had not demonstrated that the Applicant was incapable of using the mark across the specified goods and services. The Hearing Officer also noted that an applicant may legitimately delay use pending the outcome of registration proceedings, and that the Applicant had provided evidence of domain name registrations and business planning prior to the relevant date.

Ultimately, the Hearing Officer was not satisfied that the Opponent had provided sufficient cogent evidence to establish a prima facie case that the Applicant lacked the requisite intention to use the trade mark at the relevant date. Consequently, the ground of opposition under section 59 was not established. The Hearing Officer decided that the Applicant's trade mark application could proceed to registration, and awarded costs against the Opponent.