Opposition by Warehousing Equipment Pty Ltd to registration of trade mark application number 1975567 (12) - X-CART with device - in the name of Troden Equipment Pty Ltd

Warehousing Equipment Pty Ltd (the Opponent) opposed the registration of the trade mark application number 1975567, X-CART with device, by Troden Equipment Pty Ltd (the Applicant). The opposition was heard by Louise Tuohy.

The legal issues before the court included whether the Applicant's trade mark application was made in bad faith under section 62A of the *Trade Marks Act 1995* (Cth), and whether the Applicant's actions undermined the Opponent's legal rights. The Opponent also pursued grounds under sections 42(b), 44, and 60 of the Act, though these were not established.

The court considered the formulation of bad faith as falling short of acceptable commercial behaviour, but noted that mere negligence or incompetence would not suffice. The court found that while the Applicant was aware of the Opponent's 'Clax Cart' product and trade mark, this awareness alone was not sufficient to establish bad faith. The court reasoned that the Applicant had taken steps to distinguish its product, including a staff competition for the name 'X-CART' and a competitive process for the logo design. Furthermore, the court noted that the Applicant's product was not protected by a valid design or patent registration, and the labelling of the product clearly distinguished it from the Opponent's goods, aligning with the practice of the trade.

The court ordered that the opposition be dismissed and the trade mark proceed to registration. The court also awarded costs against the Opponent.