Opposition by Zewei Chen to registration of trade mark application number 2451566 (class 28) -

This matter concerned an opposition by Zewei Chen to the registration of trade mark application number 2451566 in class 28, filed by an unnamed applicant. The opposition was brought under sections 59 and 62A of the *Trade Marks Act 1995* (Cth), with the primary focus on the ground of bad faith under section 62A. The decision was made by Anne Makrigiorgos, Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer were whether the trade mark application was filed in bad faith, as alleged by the opponent under section 62A, and whether the application should be refused on that ground. The Hearing Officer was required to determine if the applicant's conduct in filing the application fell short of acceptable commercial behaviour, considering both subjective and objective elements of bad faith. The onus was on the opponent to establish bad faith on the balance of probabilities, a serious allegation requiring cogent evidence.

The Hearing Officer reasoned that the applicant's conduct raised a strong inference of bad faith. This inference arose from evidence demonstrating the applicant had filed numerous trade marks, many of which were highly distinctive and appeared to mirror overseas marks, some with minor alterations to capitalisation. The Hearing Officer noted that the applicant had not participated in the opposition proceedings to refute these claims. Applying the principles from *Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2)* and *DC Comics v Cheqout Pty Ltd*, the Hearing Officer found that the applicant's pattern of behaviour, in filing trade marks that were already registered or filed overseas, fell well short of acceptable commercial standards. Furthermore, the applicant's alleged attempt to extract a percentage of the opponent's profits to sell the application was considered to further heighten the cloud over the applicant's conduct.

Consequently, the Hearing Officer found that the ground of opposition under section 62A was established on the balance of probabilities. As this ground was successful, it was unnecessary to consider the section 59 ground. The Hearing Officer ordered that the application be refused. The opponent was awarded costs against the applicant.