Opposition by Wenxia Chen to registration of trade mark application number 2419678 (class 21) -

This decision concerns an opposition filed by Wenxia Chen (the Opponent) against the trade mark application number 2419678, known as "Marrywindix," filed by Shenzhen Juyouliangpin E-Commerce Co., Ltd (the Applicant) in Class 21. The opposition was brought before a delegate of the Registrar of Trade Marks. The Opponent sought to prevent the registration of the trade mark, alleging it was applied for in bad faith.

The primary legal issue before the delegate was whether the Applicant's trade mark application was made in bad faith, pursuant to section 62A of the *Trade Marks Act 1995* (Cth). The Opponent also pleaded grounds under sections 42(b), 58, 59, and 60 of the Act, but the delegate focused on the section 62A ground. The relevant date for determining the rights of the parties was 11 January 2024.

The delegate reasoned that bad faith under section 62A requires conduct that falls short of acceptable commercial behaviour and does not necessarily require dishonesty, but rather an unscrupulous, underhand, or unconscientious character. The delegate applied a two-step test, considering the Applicant's subjective knowledge at the filing date and then objectively assessing whether, with that knowledge, the act of filing the trade mark application would be considered in bad faith by reasonable commercial persons. The Opponent provided evidence of numerous Australian trade mark applications filed by the Applicant that mirrored trade marks already filed or registered in the United States by other entities, often for similar goods. Crucially, the Applicant failed to file any evidence or submissions in response to the Opponent's allegations. In the absence of a response, the delegate inferred that the Applicant had engaged in a pattern of behaviour that fell well short of acceptable commercial standards, leading to the conclusion that the application was made in bad faith.

Consequently, the delegate found the ground of opposition under section 62A to be established and refused to register the trade mark. The delegate also awarded costs against the Applicant in favour of the Opponent.