Epic Games, Inc v Unreil Pty Ltd

This decision concerns an opposition filed by Epic Games, Inc. (the Opponent) against the registration of the trade mark "UNREIL STUDIOS" (the Trade Mark) by Unreil Pty Ltd (the Applicant). The opposition was brought under section 52 of the *Trade Marks Act 1995* (Cth). The Opponent sought to prevent the registration of the Trade Mark for services in Classes 35 and 41, which included various business and marketing services, as well as music and recording studio services.

The legal issues before the Delegate of the Registrar of Trade Marks included whether the Trade Mark was substantially identical with or deceptively similar to any trade marks in which the Opponent had rights, pursuant to section 44 of the Act. The Opponent also raised grounds under sections 42(b), 60, and 62A, but these were not pressed or were abandoned. The critical date for determining the rights of the parties was the filing date of the application, 29 November 2022.

The Delegate considered evidence demonstrating the Opponent's extensive use and promotion of its "UNREAL ENGINE" and related marks globally and in Australia, particularly in relation to video game development software and entertainment services. The Applicant had amended its application, deleting certain services, and did not file evidence in answer to the Opponent's evidence. The Delegate found that the Opponent had established its ground of opposition under section 44 in respect of a subset of the services originally applied for. However, following the Applicant's amendment to delete these specific services, no grounds of opposition remained established.

Consequently, the Delegate ordered that the trade mark application proceed to registration, as the grounds of opposition were no longer applicable after the amendment to the specification of services.