Jiangsu Yuyue Medical Equipment & Supply Co. Ltd. v Shenzhen Aiboli Technology Co. Ltd

This matter concerned an opposition filed by Jiangsu Yuyue Medical Equipment & Supply Co. Ltd. (the Opponent) against the trade mark application number 2079709, for the mark "yuwell", filed by Shenzhen Aiboli Technology Co. Ltd (the Applicant). The opposition was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The Opponent raised several grounds for opposition under the *Trade Marks Act 1995* (Cth), including sections 42(b), 58, 59, 60, and 62A. The Applicant filed a Notice of Intention to Defend, but no evidence in answer was filed. The Opponent provided evidence in support of its opposition through declarations and annexures, which included international trade mark records, distribution agreements, purchase orders, invoices, receipts, and marketing materials. The matter proceeded to a decision based on written submissions.

The delegate was required to determine whether any of the grounds of opposition had been established, having regard to the evidence presented. The Opponent, a Chinese company manufacturing and selling medical equipment since 1998, claimed to have used the "yuwell" trade mark internationally since 2014 and in Australia since 2015. The evidence submitted by the Opponent, including distribution agreements and sales records, was considered to demonstrate the sale and marketing of medical apparatus under the trade mark in Australia prior to the relevant date.

As the Applicant did not file evidence in answer, the Opponent's evidence was not challenged. The delegate considered the evidence of prior use and marketing of the trade mark in Australia by the Opponent. The delegate's decision was to refuse to register the trade mark, based on the extent to which the grounds of opposition were established by the Opponent's evidence.