Chen v Xiamen Xiaoyuyao Trading Co., Ltd

This matter concerned an opposition by Chen, representing Yiwu Ligao Technology Co Ltd, against a trade mark application by Xiamen Xiaoyuyao Trading Co., Ltd. The dispute centred on whether the applicant's trade mark application had been filed in bad faith, as alleged by the opponent. The hearing officer, Tracey Berger, was tasked with determining the validity of this opposition.

The primary legal issue before the court was whether the applicant's trade mark application was filed in bad faith, pursuant to section 62A of the relevant legislation. This required the court to consider the evidence presented by the opponent regarding the use of its own trade mark, YIMOBRA, and the applicant's conduct in filing its application. The onus of proof rested on the opponent, and the standard of proof was the ordinary civil standard on the balance of probabilities.

The opponent presented evidence that it had created and used the YIMOBRA trade mark since 2016 for various mat products, with sales occurring on Amazon US and, since November 2019, on Amazon Australia. The opponent also provided evidence of its trade mark registrations in several countries and highlighted that the applicant had a history of trade mark applications that had received adverse examination reports or were opposed on grounds of bad faith. In the absence of any evidence from the applicant to rebut these claims, the hearing officer was satisfied that the opponent had established a prima facie case of bad faith.

Consequently, the hearing officer refused to register the applicant's trade mark. The opponent was awarded costs against the applicant, reflecting its success in the opposition proceedings.