Luxelabel Pty Ltd v Victoria Osborne

Luxelabel Pty Ltd (the Opponent) opposed the registration of a trade mark by Victoria Osborne (the Applicant). The Opponent contended that the Applicant's trade mark should not proceed to registration on grounds including those under sections 60 and 62A of the *Trade Marks Act 1995* (Cth). The hearing officer was required to determine whether the Opponent had established any of the grounds of opposition.

The central legal issues were whether the Opponent had established a ground of opposition under section 60 of the Act, which concerns the reputation of an earlier trade mark, and under section 62A of the Act, which relates to bad faith. The Opponent bore the burden of proving these grounds on the balance of probabilities, with rights assessed as at the filing and priority date of the Applicant's trade mark application.

The hearing officer found that the Opponent had failed to establish the grounds of opposition it nominated. While the Opponent provided evidence of its trade marks, Luxelabel and Luxelabel Hair Extensions, and claimed significant use and reputation, the evidence presented, particularly regarding the extent of use and the reputation among consumers, was found to be insufficient. Specifically, claims of providing services to over 5000 clients lacked supporting evidence, and online examples of use, while showing substantial follower numbers on social media, were not dated, hindering a proper assessment of reputation at the relevant time. Consequently, the hearing officer concluded that neither section 60 nor section 62A provided a basis for opposition.

The trade mark application was therefore permitted to proceed to registration, subject to a one-month waiting period from the decision date, unless an appeal was filed. The Opponent was ordered to pay the Applicant's costs.