Guangdong Oppo Mobile Telecommunications Corp Ltd v Fix-A-Tap Australia Pty Limited

Guangdong Oppo Mobile Telecommunications Corp Ltd (Oppo) and Fix-A-Tap Australia Pty Limited (Fix-A-Tap) were parties to proceedings in the Federal Court of Australia concerning alleged trade mark infringement. Fix-A-Tap, the owner of registered Australian trade marks for the "FIX-A-TAP" mark and a device mark, alleged that Oppo had infringed these marks by using the term "FIX-A-TAP" in relation to its mobile phone repair services. Oppo contended that its use of the term was descriptive and therefore not infringing.

The primary legal issue before the Court was whether Oppo's use of the term "FIX-A-TAP" constituted trade mark infringement under the *Trade Marks Act 1995* (Cth). Specifically, the Court had to determine if Oppo's use of the term was for the purpose of "describing the goods or services" of Oppo, which would be a defence to infringement. This involved an assessment of the context in which Oppo used the term and whether it functioned as a trade mark identifying the source of the services, or merely as a descriptive term for a repair service.

Justice Wilson found that Oppo's use of "FIX-A-TAP" was indeed descriptive and not used as a trade mark. The Court reasoned that the term was used in a way that clearly indicated the nature of the service being offered – a service to fix taps – rather than to distinguish Oppo's repair services from those of other traders. The Court applied the principle that a descriptive term, even if registered as a trade mark, can be used descriptively by others without infringing the registered mark, provided that use does not function as a trade mark.

Consequently, the Court dismissed Fix-A-Tap's claim for trade mark infringement.