Opposition by Yupoong, Inc to registration of trade mark application number 2111028 (Class 28) – X FLEXIFIT Sport & Fitness figurative - in the name of John Brauman.

This matter concerned an opposition by Yupoong, Inc. (the Opponent) to the registration of a trade mark application number 2111028, for the figurative mark "X FLEXIFIT Sport & Fitness" in Class 28, filed by John Brauman (the Applicant). The opposition was heard by Blake Knowles, Hearing Officer and Delegate of the Registrar of Trade Marks.

The Opponent pressed grounds of opposition under sections 44, 58A, and 60 of the *Trade Marks Act 1995* (Cth). The core legal issues were whether the Applicant's proposed trade mark was substantially identical or deceptively similar to the Opponent's earlier trade mark, whether the Applicant was the owner of the trade mark, and whether the proposed mark was likely to cause confusion due to the reputation of the Opponent's mark. The Opponent bore the burden of establishing these grounds on the balance of probabilities, with rights assessed as at the relevant date.

The Hearing Officer found that the Opponent had not established any of the nominated grounds of opposition. Specifically, the evidence did not demonstrate a likelihood of confusion arising from the reputation of the Opponent's mark under section 60. Consequently, the Hearing Officer determined that the trade mark application could proceed to registration. The Applicant was awarded costs against the Opponent.