Chapter 4 Corp DBA Supreme v Shenzhen Supbro Fashion Sports Co Ltd

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Oppositions by Chapter 4 Corp DBA Supreme to registration of trade mark application numbers 2045183 (Class 20) and 2045199 (Class 25) – SupBro figurative – both in the name of Shenzhen Supbro Fashion Sports Co Ltd.

Delegate: Blake Knowles

Representation: Opponent: David Larish of counsel, instructed by King & Wood Mallesons.
Applicant: Griffith Hack.

Decision: 2022 ATMO 80
Trade Marks Act 1995 (Cth) – oppositions under section 52 – grounds of opposition under ss 44, 59, 60, and 62A pressed – no grounds established – applications to proceed to registration.
Background

This is a decision on the oppositions by Chapter 4 Corp DBA Supreme (‘Opponent’) to the registration of trade mark application numbers 2045183 and 2045199 (‘Applications’) in the name of Shenzhen Supbro Fashion Sports Co Ltd (‘Applicant’) filed on 21 October 2019 (‘Relevant Date’), for the trade mark:
(‘Trade Mark’)
Trade mark number 2045183 seeks registration for Class 20: Shoebox; containers, and trade mark number 2045199 seeks registration for Class 25: Shoes; shoes for infants.
The Applications were initially filed by Zhyq IOT Pty Ltd (‘Original Applicant’) and assigned to the Applicant by Deed of Assignment dated 21 October 2021.
The Applications were examined, accepted for possible registration, and advertised for opposition on 23 March 2020 and 24 March 2020 respectively. The Opponent filed notices of its intention to oppose the Applications on 25 May 2020 and statements of grounds and particulars (‘SGPs’) on 24 June 2020. The Applicant filed notices of its intention to defend the Applications from opposition on 14 August 2020.
The parties were given the opportunity to file evidence in accordance with the timetable set out in the Trade Marks Regulations 1995 (Cth).[1] The Opponent, after obtaining several extensions of time, filed Evidence in Support (‘EIS’) on 18 May 2021. The Applicant did not file Evidence in Answer.
[1] Trade Marks Regulations 1995 (Cth) reg 5.14. Unless stated otherwise, each reference to a section or regulation is a reference to the Trade Marks Act 1995 (Cth) (‘Act’) or Trade Marks Regulations 1995 (Cth) (‘Regulations’).
Both parties requested to be heard by way of written submissions only. Submissions on behalf of the Opponent were filed by David Larish of counsel instructed by King & Wood Mallesons. Submissions on behalf of the Applicant were filed by Griffith Hack.
Grounds and onus
The SGPs nominate grounds of opposition under ss 42(b), 44, 58, 58A, 59, 60, and 62A. However, in submissions, the Opponent presses only grounds under ss 44, 59, 60, and 62A.
The Opponent carries the burden of establishing one or more of the grounds of opposition on the balance of probabilities.[2] The rights of the parties are assessed as at the Relevant Date.[3]
[2] Pfizer Products Inc v Karam [2006] FCA 1663, [22] (Gyles J); Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
[3] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J).
Evidence
The EIS consists of a declaration by Darci Bailey, General Counsel of the Opponent, made on 17 May 2021, with Exhibits DB-01 to DB-12.
Ms Bailey declares that since 1994 the Opponent has used a range of trade marks comprising the words SUPREME or SUP (‘Opponent’s Marks’). The Opponent’s Marks have been used in plain word and stylised formats in relation to a broad range of goods, including clothing, footwear, and other apparel and accessories, bags, various homewares and containers, personal care items, sporting equipment, musical instruments and apparatus, electrical goods, and toys. The Opponent’s Marks are also used in relation to retail services.
Ms Bailey declares that the SUPREME brand has become reputed for clothing and collectible skating products and has attracted a devoted global following. Ms Bailey annexes numerous pictures of major celebrities wearing goods bearing the SUPREME brand including Lady Gaga, Lou Reed, Kate Moss, Kanye West, Jonah Hill, and John Mayer.
Ms Bailey declares that since 2006, the Opponent has operated the website (‘Website’). Ms Bailey provides confidential figures that indicate a substantial number Australians visited the Website between 2008 and 2016. Ms Bailey also provides evidence of the use of the SUPREME brand in the domain name, website header, web search information, and on goods sold on the Website. The SUP brand also appears on several apparel items, but SUPREME is clearly the dominant and most oft used mark on the Website.
Ms Bailey declares that the Opponent has sold and promoted goods via a mobile phone app since 2013. Global download figures are provided (which are substantial) but there is no information regarding the number of downloads by Australian consumers.
Ms Bailey provides further details regarding use of the Opponent’s Marks before the Relevant Date in relation to goods such as clothing, bags, purses, toiletry cases, and shoes, in addition to use in relation to retail outlets. Ms Bailey states that the Opponent offers and promotes its goods through a small and carefully established dealer network. The Opponent also sells goods through a weekly ‘drop’ where new items are released for sale each Thursday morning. Ms Bailey opines that the slow release of goods adds to the publicity and hype around the brand.
Ms Bailey indicates that there are no formal distribution channels for Australian consumers to purchase the Opponent’s goods and services, although she opines that there is significant interest and awareness from Australian consumers.
Ms Bailey declares that the Opponent has generated significant revenue from the sale of goods and provides an aggregated figure (which is claimed to be confidential) of total revenue for the period between 2009 – 2019. However, Ms Bailey does not provide any specific figure for revenue derived from Australia. Ms Bailey also makes a vague assertion (over which confidentiality is claimed) regarding the Opponent’s promotional and advertising expenditure. However, no specific figure is provided.
Ms Bailey declares that the Opponent’s Marks have been featured heavily in editorials and media articles, many of which would have been seen by Australian consumers. Annexed to the declaration are various articles referring to the SUPREME brand, including collaborations between the Opponent and Nike in relation to footwear. Ms Bailey also provides information regarding other collaborations with celebrities, brands, and fictional characters featuring the SUPREME brand, including use in an Australian television commercial from 2014 advertising Apple’s Macbook Air.
Ms Bailey declares that the Opponent operates various social media accounts. The Opponent’s Facebook account (@supremeofficial) was launched in 2009 and as of 14 May 2021 has over two million followers. The Opponent’s Instagram account (/supremenewyork) was launched in 2013 and as of 14 May 2021 has over thirteen million followers. In addition to prominent use of SUPREME, SUP is also used in the Facebook and Instagram profile pictures:
Additional evidence
The Applicant sought to include material of an evidentiary nature in its written submissions. The Opponent objected to consideration of this material. In any event, the material would not influence my decision. As such, I give it no weight.
Discussion
Section 44
To establish grounds of opposition under ss 44(1), the Opponent must rely on at least one pending or registered trade mark with a priority date earlier than the priority date of the Applications, and which is in the name of a person other than the Applicant. The earlier mark must be substantially identical or deceptively similar to the Trade Mark and must be filed or registered in respect of goods that are similar to the goods of the Applications or services that are closely related to the goods of the Applications.
The Opponent relies on three trade mark registrations as the basis for the s 44 ground, namely, trade mark numbers 1691709, 1693307, and 1967658 (‘Opponent’s Registrations’). Details of the Opponent’s Registrations are included in Annexure A. In summary, each of the Opponent’s Registrations consists of the word SUPREME, with two registrations being for the stylised form: . Each of the Opponent’s Registrations has a priority date that is earlier than the Applications.
The Opponent contends that the Trade Mark is deceptively similar to its registered SUPREME marks. The test for whether trade marks are deceptively similar requires that one trade mark so nearly resemble another that it is likely to deceive or cause confusion.[4] In determining deceptive similarity, I am guided by the following principles:
-There must be a real, tangible danger of confusion, not just a mere possibility.[5] Likelihood of confusion can be established if a number of consumers would be caused to wonder whether the applicant’s goods or services come from some other source. It is enough if the ordinary person entertains a reasonable doubt.[6]
-The impression of the respective marks as a whole must be considered, including the size and prominence of word and device elements and their relationship to each other.[7] However, deceptive similarity can also be found where one mark uses an essential feature of the other.[8]
-Consumers may retain an imperfect recollection of a mark or its essential features.[9]
-It may be relevant that an element of the trade marks under consideration is descriptive. However, descriptiveness does not preclude a finding of deceptive similarity.[10]
-The impression of the mark on ordinary consumers is relevant, not the impression on those who are particularly perceptive or cautious, or those who are exceptionally careless or stupid.[11]
-It must be considered how the goods or services are ordinarily sold or provided.[12]
[4] Trade Marks Act 1995 (Cth) s 10.
[5] Southern Cross Refrigerating v Toowoomba Foundry (1954) 91 CLR 592, 595 (Kitto J).
[6] Coca‑Cola Co v All‑Fect Distributors Ltd [1999] FCA 1721, [39] (Black CJ, Sundberg and Finkelstein JJ); Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J).
[7] Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380, [100] (Yates J); Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196, [91]-[103] (Moore, Sackville, and Emmett JJ).
[8] Saville Perfumery Ltd v June Perfect Ltd (1941) 58 RPC 147, 174-5 (Viscount Maugham); De Cordova v Vick Chemical Co (1951) 68 RPC 103, 105-6 (Lord Radcliffe).
[9] Crazy Ron’s Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196, [79] (Moore, Sackville, and Emmett JJ).
[10] Lift Shop P/L v Easy Living Home Elevators P/L [2014] FCAFC 75, [64] (Besanko, Yates, and Mortimer JJ).
[11] Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641, 658 (Dixon and McTiernan J).
[12] Ibid.
The Trade Mark is clearly distinguishable from the word SUPREME. While the words SupBro and SUPREME share a similar prefix, the suffix is entirely different. Even allowing that more weight is usually given to the start of a mark, the visual and aural impression that each leaves on a consumer is completely different, particularly given the distinctive sound and appearance of the ‘Bro’ element in the Trade Mark. Further, conceptually, the marks are entirely unrelated. It is obvious that ‘SupBro’ is a conjoining of the elements ‘Sup’ and ‘Bro’ and is intended to evoke the phrase ‘What’s up bro’, whereas SUPREME is a well understood English word meaning ‘highest’ or ‘greatest’. Even taking into account imperfect recollection, I do not consider there is even a remote possibility of confusion by an ordinary consumer. Further, whilst I note that the Trade Mark and the Opponent’s stylised SUPREME marks share a similar italicised bold font, this does not contribute appreciably to the likelihood of confusion given the other clear visual, aural, and conceptual differences.
For the reasons given above, I am satisfied that the Trade Mark is neither substantially identical or deceptively similar to the Opponent’s registered trade marks. As such, the ground under s 44 is not established.
Section 60
To succeed under s 60, the Opponent must establish that a reputation exists in a trade mark in Australia at the Relevant Date. If reputation is established, the Opponent must then prove that because of the reputation in the mark relied on by the Opponent, use of the Trade Mark subject of the Applications is likely to deceive or cause confusion.
It is not necessary for the Opponent to establish that the trade marks relied on by the Opponent as the basis for this ground and the opposed Trade Mark are deceptively similar, or that the relevant goods or services of the parties are similar or closely related. However, the greater the similarities in the respective trade marks and goods or services, the more likely the existence of a reputation in the trade marks relied on by the Opponent is to give rise to a likelihood of confusion.
In McCormick & Co Inc v McCormick, Kenny J considered the requirements for establishing reputation. Her Honour said:
It may be correct to say, as counsel for Mary McCormick did, that the volume of the company’s sales does not directly establish that a significant number of people held the McCormick & Co marks, as distinct from the company’s products, in favourable regard. It does not follow, however, that the volume of sales and promotional expenditures are irrelevant. As Hearing Officer Thompson observed in Hugo Boss AG v Jackson International Trading Co Kurt D Bruhl GmbH & Co KG (1999) 47 IPR 423 (“Hugo Boss”) at 436:
[I]t is true that the assessment of the reputation of a trade mark goes far beyond mere examination of sales or turnover of goods sold under that trade mark and contemplation of the advertising and promotional figures.
As regards a trade mark, its reputation derives both from the quantum of sales under that mark and also the esteem, or image, projected by that trade mark. The quantum of sales, advertising and promotion contributes to the ‘recognition’ component of the trade mark’s reputation. The credit, image and values projected by a trade mark attaches to the ‘esteem’ component of the reputation as do the public events and other trader’s marks with which [the] owner of the trade marks in question chooses to associate the trade marks via sponsorships, cross-promotions, ‘contra deals’ and so forth.
It follows that a trade mark used in relation to goods with comparatively low sales may have a high and strong reputation by virtue of the high credit or esteem in which it is held or, conversely, that a trade mark which has very high sales may have a strong reputation notwithstanding the lack of esteem that attaches to it. The particular popular images, or sets of values, that attach to the trade mark are also, therefore, important parts of the reputation of the trade mark and may be as strong an associative force in the minds of the public as the association of the trade marks with the goods or services themselves.
In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product: see, e.g., Isuzu-General Motors Australia Ltd v Jackeroo World Pty Ltd (1999) 47 IPR 198; Marks & Spencer plc v Effem Foods Pty Ltd (2000) AIPC 91-560; Photo Disc Inc v Gibson (1998) 42 IPR 473; and RS Components Ltd v Holophane Corp (1999) 46 IPR 451. This Court has followed this approach as well, acknowledging that public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things. Thus, in Toddler Kindy Gymbaroo Pty Ltd v Gymboree Pty Ltd [2000] FCA 618 (“Gymboree”), Moore J accepted at [94] that the applicant had established a reputation for the purposes of s 60 solely on the basis of use and promotion of the relevant mark. Another example of this approach is Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1997) 38 IPR 495 (“Nettlefold”), in which Heerey J relied upon the public visibility of the applicant’s marks over approximately two decades as well as a $100,000 promotional campaign in finding that a reputation for the purposes of s 28 of the 1955 Act existed.[13]
[13] [2000] FCA 1335, [85]-[86].
In Rodney Jane Racing Pty Ltd v Monster Energy Company it was observed that:
The reputation of a trade mark has quantitative and qualitative dimensions. The quantitative dimension concerns the breadth of the public that are likely to be aware of the mark, which can be evidenced by the quantum of sales, advertising and promotion of goods or services to which the mark is applied. The qualitative dimension concerns the image and values projected by the trade mark, which affects the esteem or favour in which the mark is held by the public generally.[14]
[14] [2019] FCA 923, [83] (O’Bryan J).
The existence of reputation does not necessarily mean that confusion resulting from use of the Trade Mark is likely to occur. There must be a nexus between the reputation in the Opponent’s Marks and the likelihood of confusion caused by use of the Trade Mark. In Rogers Seller & Myhill Pty Ltd v Reece Pty Ltd, Hearing Officer Lyons said:
Confusion can not arise solely from the reputation of one trade mark. There must always remain a level of similarity between the marks, whether we call it deceptive similarity or something less, and no matter how small it might be. The likelihood of confusion must depend on the reputation of the opponent's trade mark, but have regard (amongst other factors) to the level of similarity of the goods/services and the degree of similarity of the trade marks, greater or smaller.[15]
[15] [2010] ATMO 5, [39].
The Opponent relies on reputation in the Opponent’s Marks, being SUPREME, , SUP, and .
The Opponent’s evidence is vague regarding the extent of use of the Opponent’s Marks in the Australian market. The revenue figures provided lack specificity and do not carve out sales to Australian consumers. The paragraph relating to promotional and advertising expenditure contains no useful information, despite being marked as ‘confidential’. However, the information regarding visits by Australian consumers to the Website is probative, and I can also infer that some of the Opponent’s significant social media following originates from Australia. Further, I consider that some Australian consumers would be aware of the Opponent’s Marks through exposure to various media articles and other uses of the marks overseas. I also accept that Australian consumers of fashion products (particularly young consumers) often follow trends originating from the United States, and that fashion is an area where there can be appreciable spill-over reputation from foreign jurisdictions.
The Opponent’s evidence indicates that some reputation in the SUPREME brand (including in plain word and stylised form) likely exists in Australia. This fact is also conceded by the Applicant. However, the extent of the reputation is difficult to quantify, given the Opponent’s decision to be circumspect regarding key metrics such as revenue and promotional expenditure specific to the Australian market. However, even assuming that the Opponent had a significant reputation in the SUPREME brand in Australia at the Relevant Date, it does not follow that this reputation would give rise to a likelihood of confusion with the Trade Mark. I consider that the Trade Mark is so different to the SUPREME brand visually, aurally, and conceptually that consumers are highly unlikely to assume that goods sold under the Trade Mark originate from the Opponent or are otherwise associated with the Opponent in some way, notwithstanding any reputation that may exist in the SUPREME brand.

I am also not satisfied that the Opponent’s evidence demonstrates a reputation in the SUP brand (either plain word or stylised) in Australia. While the evidence shows sporadic use of SUP (usually in close proximity to SUPREME) on apparel, and use of SUP as a profile picture on social media, SUPREME is clearly the dominant brand used by the Opponent. It is of course possible for a subordinate brand or abbreviation to accrue its own reputation as a badge of origin, even if used closely with a more dominant brand. However, given the limited evidence of use of SUP by the Opponent, and the lack of specific information provided by the Opponent regarding its use in the Australian market, I am not satisfied that there exists a reputation in the SUP brand that would give rise to a likelihood of confusion.
For the reasons given above, the ground under s 60 is not established.
Section 59
To succeed under s 59, the Opponent must establish that the Original Applicant did not have a genuine intention at the Relevant Date to use the Trade Mark in relation to the goods specified in the Applications.
It is well established that applying for registration brings with it a presumption that the Original Applicant intended to use the Trade Mark.[16] As such, the onus is on the Opponent to displace this presumption by making out a prima facie case that the Original Applicant lacked the requisite intention at the Relevant Date.[17] Once a prima facie case is established, the onus shifts to the Original Applicant to positively establish an intention to use.[18] A prima facie case can be made out based on slight evidence.[19]
[16] Suyen Corp v Americana International Ltd [2010] FCA 638 [197] (Dodds Streeton J).
[17]Aston v Harlee Manufacturing Co [1980] HCA 47.
[18] Health World Limited v Shin-Sun Australia Pty Ltd [2008] FCA 100, [163] (Jacobson J).
[19] CFX Funds Management Pty Ltd v McMahon [2016] ATMO 52, [24] – [27].
The mere allegation by the Opponent that the Original Applicant lacked a genuine intention to use the Trade Mark is not by itself sufficient to displace the presumption of intention to use. However, where a sufficient ‘cloud’ exists (based on the allegations and evidence of the Opponent) regarding the intention of the Original Applicant at the Relevant Date, the presumption of intention to use can be displaced and the ground under s 59 can be established in the absence of a ‘plain and direct response’ from the Original Applicant to the allegations and evidence of the Opponent.[20]
[20]Republic Consulting Pty Ltd v Nhan Chiem [2008] ATMO 20, [51].
The Opponent relies on several facts to establish a prima facie case of lack of intention to use. First, the Original Applicant was put on notice in the SGPs that its intention to use was being questioned. Second, the Opponent was not able to locate any evidence that the Original Applicant intended to use the Trade Mark. Third, the Trade Mark was assigned from the Original Applicant to the Applicant after the evidence stages but prior to the hearing. Fourth, the Applicant did not file a notice of intention to defend in relation to an opposition to another application for the Trade Mark (trade mark number 1985292) for goods in Class 3.
The facts relied on by the Opponent do not in my view raise a sufficient cloud regarding the Original Applicant’s intention to use the Trade Mark that required an evidentiary response. The allegation in the SGPs is mere assertion, as is the statement that the Opponent was not able to locate any evidence regarding the Original Applicant’s intention to use. There is no evidence before me (such as a declaration from the Opponent’s counsel) as to what searches or other investigations were undertaken by the Opponent to reach this conclusion. The assignment of the Trade Mark from the Original Applicant to the current Applicant also does not cast doubt on the intention of the Original Applicant at the time of filing. There are many commercial reasons why a trade mark may be assigned. Finally, I accept that actions taken in relation to other applications may have some relevance in determining intention to use. However, in this case, I do not consider that the failure to defend an opposition to one other application for the Trade Mark for very different goods indicates a pattern of behaviour or other underlying ulterior motive in filing the Applications that casts doubt on the Original Applicant’s intentions.
I am not satisfied that the Opponent has made out a prima facie case that the Original Applicant lacked a genuine intention to use the Trade Mark at the Relevant Date. As such, the ground under s 59 is not made out.
Section 62A
Whether an application was made in bad faith requires consideration of a subjective and an objective element. For the subjective element I must form a view of the actual knowledge of the Original Applicant at the time the Applications were filed. The objective element then asks, would a person adopting proper standards, knowing what the Original Applicant knew, regard the act of filing the Applications as being in bad faith? This is to be assessed by determining whether the act of filing ‘falls short of the standards of acceptable commercial behaviour’ in the relevant industry.[21] I am without evidence as to any standards of behaviour peculiar to this industry, so I proceed in my assessments here based on general commercial behaviour.
[21] DC Comics v Cheqout Pty Ltd [2013] FCA 478, [62] (Bennett J); Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81, [165] (Dodds-Streeton J).
The Opponent alleges that the Original Applicant would have known about the Opponent’s Marks and their particular font and stylisation, and that this supports an inference that the Original Applicant was intending to derive a benefit from the Opponent’s reputation. Further, the Opponent submits that as the Original Applicant’s bona fides were challenged, an evidentiary response from the Applicant was required.
Similarly to s 59, I do not consider that the Opponent’s case under s 62A rises above mere assertion, and the evidence does not establish a prima facie case requiring an evidentiary response from the Original Applicant. The Trade Mark is very different from the SUPREME brand for which the Opponent has a claim to reputation. I consider this difference alone is enough to dispose of any claim of bad faith which is founded on the Original Applicant’s knowledge of the SUPREME brand.
While the Trade Mark is somewhat closer to the Opponent’s SUP brand, it is still arguable whether those two marks are deceptively similar, and whether the Opponent has any appreciable reputation in SUP in Australia. Taking those factors into account, in addition to the lack of any other compelling evidence casting doubt on the Original Applicant’s motives, it is not possible to conclude that the Original Applicant’s conduct in filing the Applications falls short of standards of acceptable commercial behaviour.
For the reasons given above, the ground under s 62A is not established.
Decision and costs
The Opponent has failed to establish any of the grounds of opposition pressed. As such, the Applications for the Trade Mark may proceed to registration.
If the Registrar is served with a notice of appeal in respect of either or both of the Applications, I direct that registration shall not occur until either the relevant appeal is withdrawn or discontinued. Otherwise, the disposition of the relevant application should be in accordance with the Court’s order or direction.
The Applicant requested an award of costs. Costs generally follow the event. As such, I award costs against the Opponent in accordance with Schedule 8 of the Regulations.
Blake Knowles
Hearing Officer
Delegate of the Registrar of Trade Marks
19 May 2022
Annexure A
Opponent’s Registrations
Trade Mark number:   1691709
Trade Mark:
Goods/Services:  Class 18: All-purpose sports and athletic bags; beach, book, carry-on, duffel, gym, leather shopping, shoulder, tote and travel bags; fanny packs and waist packs; backpacks; knapsacks; garment bags for travel; satchels; luggage; luggage tags; trunks; suitcases; bags sold empty; toiletry and vanity cases sold empty; tool bags sold empty; attache cases; briefcases; briefcase-type portfolios; document cases; men's clutches; business card cases; calling and credit card cases; key cases; leather key chains; wallets; diaper bags; purses; hat boxes for travel not of paper or cardboard; cosmetic cases and bags sold empty; business cases; bank note holders; billfolds; umbrellas; parasols; walking sticks
Class 25: Clothing, namely, shirts, t-shirts, long-sleeved shirts, henley shirts, under shirts, polo shirts, long-sleeved polo shirts, rugby shirts, jerseys, sleeveless jerseys, baseball shirts, hooded baseball shirts, dress shirts, denim jeans, denim overalls, hooded sweat shirts, hooded pullover sweatshirts, snap front sweatshirts, zip up hooded sweatshirts, crewneck sweatshirts, warm-up suits, parkas, sweaters, cardigans, pants, jean jackets, cargo pants, flight pants, shorts, boxer shorts, tops, tank tops, sweat shirts, sweat jackets, sweat shorts, sweat pants, sweaters, vests, fleece vests, pullovers, half-zip pullovers, jackets, coats, blazers, suits, reversible jackets, wind-resistant jackets, shell jackets, sports jackets, golf and ski jackets, heavy coats, over coats, top coats, trench coats, Harrington jackets, barn coats, seam jackets, coaches jackets, varsity jackets, fireman coats, shearling coats, swimwear, beachwear, visors, headbands, half masks, ear muffs, thermal underwear, long underwear, underclothes, caps, hats, knit caps, camp caps, baseball hats, bell hats, trooper hats, beanies, headwear, scarves, bandanas, belts, neckwear, ties, robes, gloves, boots, rainwear, footwear, shoes and sneakers; wraps, pajamas, sleepwear, dresses, skirts, blouses, robes; children's and infant's polo shirts, children's and infant's rugby shirts, children's and infant's snow suits, children's and infant's cargo pants and, infant body suits
Class 35: Retail stores, on-line ordering services and on-line retail store services, and retail store services available through computer communications, featuring apparel, clothing, shirts, t-shirts, long-sleeved shirts, henley shirts, under shirts, polo shirts, long-sleeved polo shirts, rugby shirts, jerseys, sleeveless jerseys, baseball shirts, hooded baseball shirts, dress shirts, denim jeans, denim overalls, hooded sweat shirts, hooded pullover sweatshirts, snap front sweatshirts, zip up hooded sweatshirts, crewneck sweatshirts, warm-up suits, parkas, sweaters, cardigans, pants, jean jackets, cargo pants, flight pants, shorts, boxer shorts, tops, tank tops, sweat shirts, sweat jackets, sweat shorts, sweat pants, sweaters, vests, fleece vests, pullovers, half-zip pullovers, jackets, coats, blazers, suits, reversible jackets, wind-resistant jackets, shell jackets, sports jackets, golf and ski jackets, heavy coats, over coats, top coats, trench coats, Harrington jackets, barn coats, seam jackets, coaches jackets, varsity jackets, fireman coats, shearling coats, swimwear, beachwear, visors, headbands, half masks, ear muffs, thermal underwear, long underwear, underclothes, scarves, belts, neckwear, ties, robes, gloves, headwear, caps, hats, knit caps, camp caps, baseball hats, bell hats, trooper hats, beanies, bandanas, footwear, shoes and sneakers, wraps, pajamas, sleepwear, dresses, skirts, blouses, robes, children's and infant's polo shirts, children's and infant's rugby shirts, children's and infant's snow suits, children's and infant's cargo pants and, infant body suits, all-purpose sports and athletic bags, beach, book, carry-on, duffel, gym, leather shopping, shoulder, tote and travel bags, fanny packs and waist packs, backpacks, knapsacks, garment bags for travel, satchels, luggage, luggage tags, trunks, suitcases, bags sold empty, toiletry and vanity cases sold empty, tool bags sold empty, attache cases, briefcases, briefcase-type portfolios, document cases, men's clutches, business card cases, calling and credit card cases, key cases, leather key chains, wallets, diaper bags, purses, hat boxes for travel not of paper or cardboard, cosmetic cases and bags sold empty, business cases, bank note holders, billfolds, umbrellas, parasols, walking sticks
Priority Date:  6 May 2015
Trade Mark number:   1693307
Trade Mark:  SUPREME
Goods/Services:  Class 18: All-purpose sports and athletic bags; beach, book, carry-on, duffel, gym, leather shopping, shoulder, tote and travel bags; fanny packs and waist packs; backpacks; knapsacks; garment bags for travel; satchels; luggage; luggage tags; trunks; suitcases; bags sold empty; toiletry and vanity cases sold empty; tool bags sold empty; attache cases; briefcases; briefcase-type portfolios; document cases; men's clutches; business card cases; calling and credit card cases; key cases; leather key chains; wallets; diaper bags; purses; hat boxes for travel not of paper or cardboard; cosmetic cases and bags sold empty; business cases; bank note holders; billfolds; umbrellas; parasols; walking sticks
Class 25: Clothing, namely, shirts, t-shirts, long-sleeved shirts, henley shirts, under shirts, polo shirts, long-sleeved polo shirts, rugby shirts, jerseys, sleeveless jerseys, baseball shirts, hooded baseball shirts, dress shirts, denim jeans, denim overalls, hooded sweat shirts, hooded pullover sweatshirts, snap front sweatshirts, zip up hooded sweatshirts, crewneck sweatshirts, warm-up suits, parkas, sweaters, cardigans, pants, jean jackets, cargo pants, flight pants, shorts, boxer shorts, tops, tank tops, sweat shirts, sweat jackets, sweat shorts, sweat pants, sweaters, vests, fleece vests, pullovers, half-zip pullovers, jackets, coats, blazers, suits, reversible jackets, wind-resistant jackets, shell jackets, sports jackets, golf and ski jackets, heavy coats, over coats, top coats, trench coats, Harrington jackets, barn coats, seam jackets, coaches jackets, varsity jackets, fireman coats, shearling coats, swimwear, beachwear, visors, headbands, half masks, ear muffs, thermal underwear, long underwear, underclothes, caps, hats, knit caps, camp caps, baseball hats, bell hats, trooper hats, beanies, headwear, scarves, bandanas, belts, neckwear, ties, robes, gloves, boots, rainwear, footwear, shoes and sneakers; wraps, pajamas, sleepwear, dresses, skirts, blouses, robes; children's and infant's polo shirts, children's and infant's rugby shirts, children's and infant's snow suits, children's and infant's cargo pants and, infant body suits
Class 35: Retail stores, on-line ordering services and on-line retail store services, and retail store services available through computer communications, featuring apparel, clothing, shirts, t-shirts, long-sleeved shirts, henley shirts, under shirts, polo shirts, long-sleeved polo shirts, rugby shirts, jerseys, sleeveless jerseys, baseball shirts, hooded baseball shirts, dress shirts, denim jeans, denim overalls, hooded sweat shirts, hooded pullover sweatshirts, snap front sweatshirts, zip up hooded sweatshirts, crewneck sweatshirts, warm-up suits, parkas, sweaters, cardigans, pants, jean jackets, cargo pants, flight pants, shorts, boxer shorts, tops, tank tops, sweat shirts, sweat jackets, sweat shorts, sweat pants, sweaters, vests, fleece vests, pullovers, half-zip pullovers, jackets, coats, blazers, suits, reversible jackets, wind-resistant jackets, shell jackets, sports jackets, golf and ski jackets, heavy coats, over coats, top coats, trench coats, Harrington jackets, barn coats, seam jackets, coaches jackets, varsity jackets, fireman coats, shearling coats, swimwear, beachwear, visors, headbands, half masks, ear muffs, thermal underwear, long underwear, underclothes, scarves, belts, neckwear, ties, robes, gloves, headwear, caps, hats, knit caps, camp caps, baseball hats, bell hats, trooper hats, beanies, bandanas, footwear, shoes and sneakers, wraps, pajamas, sleepwear, dresses, skirts, blouses, robes, children's and infant's polo shirts, children's and infant's rugby shirts, children's and infant's snow suits, children's and infant's cargo pants and, infant body suits, all-purpose sports and athletic bags, beach, book, carry-on, duffel, gym, leather shopping, shoulder, tote and travel bags, fanny packs and waist packs, backpacks; knapsacks; garment bags for travel, satchels, luggage, luggage tags, trunks, suitcases, bags sold empty, toiletry and vanity cases sold empty, tool bags sold empty, attache cases, briefcases, briefcase-type portfolios, document cases, men's clutches, business card cases, calling and credit card cases, key cases, leather key chains, wallets, diaper bags, purses, hat boxes for travel not of paper or cardboard, cosmetic cases and bags sold empty, business cases, bank note holders, billfolds, umbrellas, parasols, walking sticks
Priority Date:  13 May 2015
Trade Mark number:   1967658
Trade Mark:
Goods/Services:  Class 9: Eyewear and related accessories; protective covers, cases and accessories for mobile phones, laptops, tablet computers, portable media players and personal digital assistants; downloadable graphics, image and music files; pre-recorded DVDs, video discs and video tapes; downloadable mobile application for use in the field of fashion
Class 28: Skateboard decks, skateboards and their parts and accessories; games; toys
Priority Date:  8 November 2018

Delegate:	Blake Knowles
Representation:	Opponent: David Larish of counsel, instructed by King & Wood Mallesons. Applicant: Griffith Hack.
Decision:	2022 ATMO 80 Trade Marks Act 1995 (Cth) – oppositions under section 52 – grounds of opposition under ss 44, 59, 60, and 62A pressed – no grounds established – applications to proceed to registration.

[2022] ATMO 80

19 May 2022