Opposition by Luckin Coffee Group Co Ltd to registration of trade mark application number 1987084 (Class 43) – Luckin – in the name of A&ZZ Pty Ltd.

[2022] ATMO 43

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re: Opposition by Luckin Coffee Group Co Ltd to registration of trade mark application number 1987084 (Class 43) – Luckin – in the name of A&ZZ Pty Ltd.

Delegate:

Blake Knowles

Representation:

Opponent: Ben Gardiner of counsel, instructed by McCullough Robertson Lawyers.
Applicant: Self-represented.

Decision:

2022 ATMO 43

Trade Marks Act 1995 (Cth) – opposition under section 52 – grounds for opposition pressed under ss 42(b), 60, and 62A – s 60 considered and established – registration refused.

Background

1. This is a decision in the opposition by Luckin Coffee Group Co Ltd (‘Opponent’)[1] to trade mark application number 1987084 (‘Application’) filed by A&ZZ Pty Ltd (‘Applicant’) on 3 February 2019 (‘Relevant Date’) for the trade mark ‘Luckin’ (‘Trade Mark’) for cafes; cafe services; restaurants; salad bar restaurant services; coffee shop services; bistro services; washoku restaurant services; inn keeping (bar, restaurant and accommodation); restaurant services; cocktail lounge services; coffee bar and coffee house services (provision of food and drink); snack-bars; theatre restaurants (provision of food and drink); bakery services; wine bar services; taverns; bar services; takeaway food and drink services; tea room services; restaurant reservation services; food and drink catering; snack bars (provision of food and drink); ice cream parlour services; self-service restaurants; udon and soba restaurant services in Class 43 (‘Applicant’s Services’).

   [1] The opposition was initially filed by another company Beijing Luckin Coffee Technology Co Ltd. However, the rights upon which the opposition were based were subsequently assigned to the Luckin Coffee Group Co Ltd, and that company subsequently requested on 25 February 2022 to become the opponent in these proceedings. As such, references to the ‘Opponent’ in this decision are references collectively to Luckin Coffee Group Co Ltd as the current Opponent, and Beijing Luckin Coffee Technology Co Ltd as its predecessor.

2. The Application was accepted for registration and subsequently advertised for opposition on 4 August 2019.  The Opponent filed a notice of intention to oppose on 3 October 2019, followed by a statement of grounds and particulars (‘SGP’) on 1 November 2019. The Applicant filed a notice of intention to defend on 11 February 2020.

3. The parties had the opportunity to file evidence in accordance with reg 5.14.[2] The Opponent filed Evidence in Support (‘EIS’) on 12 August and 7 September 2020. The Applicant filed Evidence in Answer (‘EIA’) on 3 February 2021. The Opponent did not file Evidence in Reply.  

   [2]   Unless otherwise stated, each reference to a section or regulation is a reference to a section of the Trade Marks Act 1995 (Cth) (‘Act’) or regulation of the Trade Marks Regulations 1995 (Cth) (‘Regulations’).

4. The parties were given the opportunity to request an oral hearing or be heard by written submissions. The Opponent requested that the matter be decided based on written submissions and paid the relevant fee. Ben Gardiner of counsel instructed by McCullough Robertson Lawyers filed written submissions on behalf of the Opponent. The Applicant did not…