Opposition by Junhui Zheng to registration of trade mark application 2010383 (33) – MAGIC TREE (Fancy) – in the name of Weili Mu

This matter concerned an opposition by Junhui Zheng to the registration of the trade mark application 2010383 (33) for the mark MAGIC TREE, filed by Weili Mu. The opposition was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the ground of opposition under section 62A of the *Trade Marks Act 1995* (Cth) had been established. This section relates to the registration of a trade mark in bad faith. The opponent contended that the applicant's decision to apply for registration was in bad faith, as she had deliberately sought to take over the mark from an entity with which the opponent had dealings.

The delegate considered evidence filed by both parties, including declarations from legal representatives and the applicant. The delegate expressed significant concerns regarding the nature of the opponent's evidence, finding that statements made by the opponent's representatives lacked direct personal knowledge and were largely unsupported assertions. While the delegate acknowledged an explanation for the opponent's second declaration, it was still found to be largely hearsay and less reliable than the applicant's direct recollection. Ultimately, the delegate was not satisfied that the opponent had established the ground of opposition under section 62A.

Consequently, the delegate ordered that the trade mark application could proceed to registration, subject to a one-month waiting period from the date of the decision, unless an appeal was filed. The applicant was awarded costs against the opponent.