Opposition by Myspace LLC to application under section 92 of the Act by Michelle McLean to remove trade mark registration number 1157805 (9, 15, 16, 25, 35, 38, 40, 41, 42, 45) - ILIKE - in the name of Myspace LLC

This matter concerned an opposition by Myspace LLC to an application by Michelle McLean to remove trade mark registration number 1157805, for the mark "ILIKE", from the Register. The application for removal was made under section 92 of the Act, alleging non-use of the trade mark in relation to a range of goods and services. The hearing officer considered the evidence filed by Myspace LLC, the registered owner of the trade mark, and noted that no evidence had been filed by the applicant for removal.

The primary legal issue before the hearing officer was whether the trade mark "ILIKE" had been used in Australia in good faith in relation to the goods and services for which it was registered, during the relevant three-year period preceding the application for removal. Specifically, the hearing officer had to determine if the use described by Myspace LLC constituted use of the trade mark in Australia under the Act, and if so, whether that use extended to all the goods and services for which the mark was registered.

The hearing officer found that Myspace LLC had provided sufficient evidence of use of the trade mark "ILIKE" in Australia during the relevant period. This use was in connection with a music discovery function on its social networking platform, which included features such as searching for music, streaming music and videos, creating playlists, uploading music, accessing music-related articles, and connecting with artists. The hearing officer considered that this use, even if in a plain font, did not substantially affect the identity of the trade mark. However, the evidence of use did not extend to all the goods and services for which the trade mark was registered. Consequently, the hearing officer considered the discretion available under section 101 of the Act to impose conditions or limitations on the registration.