Geo-Poland SP. Z O.o. v Huijing Group Co., Ltd

This matter concerned an opposition by Geo-Poland SP. Z O.o. (the Opponent) to the registration of three trade mark applications by Huijing Group Co., Ltd (the Applicant). The Opponent, a Polish developer and manufacturer of baby milk powder formulas under the trade mark HOSLAND, had entered into an exclusive agreement for the distribution of its products in the Chinese market. The Applicant, which owned versions of the trade marks in China, Hong Kong, and Taiwan, manufactured milk powders in Australia for export, particularly to the China region. The Opponent sought to oppose the registration of the Applicant's trade marks on the ground that the applications were made in bad faith, pursuant to section 62A of the *Trade Marks Act 1995* (Cth).

The central legal issue before the Hearing Officer was whether the Applicant's trade mark applications were made in bad faith. This required the court to consider the subjective knowledge of the Applicant at the time of filing the applications and, objectively, whether that conduct fell short of acceptable commercial standards. The Explanatory Memorandum to the *Trade Marks Amendment Act 2006*, which introduced section 62A, provided examples of bad faith, including registering a trade mark overseas with no intention to use it in the Australian market, for the express purpose of selling it to the overseas owner.

The Hearing Officer applied the principles established in *DC Comics v Cheqout Pty Ltd* and *Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2)*, which define bad faith as a combined subjective and objective test. The evidence indicated that the Applicant manufactured milk powders in Australia for export to China, and the Opponent had an exclusive agreement for distribution in that market. The Hearing Officer was satisfied that the Opponent had established its ground of opposition under section 62A.

Consequently, the Hearing Officer refused to register the Applicant's trade mark applications. The Opponent was awarded costs against the Applicant, following the general rule that costs follow the event.