Opposition by AUDC Pty Ltd to registration of trade mark application number 2447913 (classes 9 and 42) –

This matter concerned an opposition by AUDC Pty Ltd to the registration of trade mark application number 2447913, filed by an unnamed applicant, for goods and services in classes 9 and 42. AUDC Pty Ltd, a fintech company specialising in blockchain technology, claimed use of the trade mark AUDD since February 2022 and relied on its own registration for AUDD in class 36. The applicant's trade mark was reportedly used in connection with a music recognition API. The opposition was brought on several grounds, including under section 44 of the *Trade Marks Act 1995* (Cth).

The primary legal issue before the Delegate of the Registrar of Trade Marks was whether the applicant's trade mark application should be rejected under section 44 of the Act, which prohibits the registration of a trade mark that is substantially identical with or deceptively similar to an earlier registered trade mark in respect of similar goods or closely related services. The Delegate also had to consider the consequences of establishing a ground of opposition, particularly in light of the applicant's non-participation in the proceedings.

The Delegate found that the class 36 services of the opponent were closely related to the goods and services of the applicant. Applying section 44, the Delegate determined that the ground of opposition was at least partly successful. Citing *Apple Inc v Registrar of Trade Marks*, the Delegate noted that where an application fails in respect of some goods or services, it may fail as a whole. While the Registrar has a discretion to offer an amendment to remove goods or services for which opposition has been established, the Delegate declined to exercise this discretion in the absence of any submissions from the applicant or any principled basis identified by either party for allowing an amendment.

Consequently, the Delegate rejected the trade mark application in its entirety. The opponent was awarded costs against the applicant.