Hype DC Pty Ltd v Lux360 Ltd

Hype DC Pty Ltd (the Opponent) opposed the registration of a trade mark by Lux360 Ltd (the Applicant) under the *Trade Marks Act 1995* (Cth). The opposition was based on several grounds, but the Opponent ultimately pressed only grounds under sections 44 and 59 of the Act, asserting that the section 59 ground was conclusive of the opposition. The matter was heard by Debrett Lyons, a Hearing Officer delegated to decide the opposition.

The primary legal issues before the court were whether the Applicant intended to use the trade mark in Australia in relation to the specified goods and services, as required by section 59, and whether the goods and services were closely related, as required by section 44. The Opponent argued that the Applicant had not filed sufficient evidence to demonstrate an intention to use the mark, particularly as at the priority date of 9 May 2022, and that the Applicant had been on notice of this issue since January 2023.

The Hearing Officer considered the onus on the Opponent to prove the absence of intention to use the trade mark. While acknowledging the subjective nature of intention and the difficulties opponents face in establishing a lack of intention, the Hearing Officer found that the Opponent had not discharged this onus. The Hearing Officer also found that the compared goods and services were not closely related, meaning the section 44 ground was not established.

Consequently, the Hearing Officer decided that the grounds of opposition had not been established and directed that the Applicant's trade mark application could proceed to registration. The Hearing Officer also awarded costs against the Opponent.