Hugo Boss AG v Kei Kun Ho

This matter concerned an opposition by Hugo Boss AG (the Opponent) to the registration of a trade mark by Kei Kun Ho (the Applicant). The Opponent sought to prevent the registration of the Applicant's mark, relying on several grounds under the *Trade Marks Act 1995* (Cth). The hearing officer, Anne Makrigiorgos, was tasked with determining whether any of these grounds were established.

The primary legal issue before the hearing officer was whether the Opponent had discharged its burden of proving, on the balance of probabilities, at least one of the grounds of opposition. Specifically, the hearing officer considered the ground of opposition under section 60 of the *Trade Marks Act 1995*, which relates to trade marks that are identical or deceptively similar to a trade mark that has acquired a reputation in Australia. The relevant date for assessing the rights of the parties was the date on which the application for registration was filed.

The hearing officer found that the Opponent had successfully established the ground of opposition under section 60. The Opponent presented substantial evidence demonstrating the extensive use and advertising of its "BOSS" trade marks in Australia since at least 1979 across a wide range of goods, including clothing, fragrances, eyewear, and children's toys. This evidence included details of retail sales, advertising expenditure, and promotional activities across various media platforms and sponsorships. The hearing officer concluded that, by the relevant date, the Opponent's trade marks had acquired a significant reputation in Australia.

Consequently, the hearing officer refused to register the trade mark applied for by the Applicant. The hearing officer also directed that registration should not occur pending any appeal and awarded costs against the Applicant in favour of the Opponent.