Expensify, Inc v SWAPPOINT AG

Expensify, Inc. (the Opponent) opposed the extension of protection to Australia of an international registration of trade marks held by SWAPPOINT AG (the Holder). The dispute concerned the validity of the Holder's trade mark registration, with the Opponent raising a ground of opposition under section 59 of the *Trade Marks Act 1995* (Cth). The proceedings were heard by Anne Makrigiorgos, Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether the Opponent had discharged its onus of proving, on the balance of probabilities, that the ground of opposition under section 59 of the *Trade Marks Act 1995* (Cth) was established. This section relates to the circumstances in which a trade mark may be registered.

The Delegate considered the evidence filed by both parties, including declarations from representatives of the Opponent and the Holder. The Opponent's evidence included screenshots from searches of the Holder's website and social media, which indicated use of the mark. The Holder's evidence detailed the company's incorporation in Switzerland, the development of the trade mark concept, and steps taken to secure domain names and develop an app under the trade mark. Ultimately, the Delegate found that the Opponent had not established the ground of opposition raised.

Accordingly, the Delegate ordered that protection of the international registration of trade marks may be extended to Australia one month from the date of the decision, unless an appeal was filed. The Delegate also awarded costs against the Opponent.