Opposition by Yupoong, Inc to registration of trade mark application number 2114911 (Class 25) – 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 the trade mark application number 2114911, X FLEXIFIT Sport & Fitness figurative, in Class 25, filed by John Brauman (the Applicant). The opposition was heard by Blake Knowles, Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer were whether the grounds of opposition pressed by the Opponent, specifically under sections 44, 58A, and 60 of the *Trade Marks Act 1995* (Cth), were established. The Opponent bore the burden of proving these grounds on the balance of probabilities as at the relevant date.

The Hearing Officer found that the Opponent had established the ground of opposition under section 44 of the *Trade Marks Act 1995* (Cth). This was based on evidence that the Opponent was the owner of registered Australian trade marks incorporating the word FLEXFIT, including registration number 1361948 with a priority date of 14 May 2010, for goods in Class 25. The Opponent had also demonstrated continuous use of its FLEXFIT mark in Australia since 2002 through its distributor. Given that section 44 was established, it was not necessary to consider the other grounds of opposition.

Consequently, the Hearing Officer decided to refuse the registration of the Applicant's trade mark for all goods in Class 25. The refusal was to be recorded one month from the date of the decision unless a notice of appeal was served on the Registrar. The Hearing Officer also awarded costs against the Applicant, as costs generally follow the event and there was no reason to depart from this rule.