Q Dance Australia Pty Ltd v Avant Media Pty Ltd

This decision concerns a trade mark opposition heard by Hearing Officer Heath Wilson of the Trade Marks Hearings. Q Dance Australia Pty Ltd, the applicant, sought to register the trade marks "Defqon", "Defqon1", and "Defqon01". Avant Media Pty Ltd, the opponent, opposed the registration.

The primary legal issue before the Hearing Officer was whether the applicant's trade mark application was made in bad faith, as alleged by the opponent under section 62A of the relevant Act. The opponent also relied on other grounds of opposition, but the decision focuses on the bad faith argument.

The Hearing Officer found that the opponent's evidence had shifted the onus to the applicant to provide an explanation for its actions. The applicant provided evidence that, while aware of the opponent's trade mark at the time of filing, it was unaware of the opponent's plans to expand its business into Australia. Considering all the circumstances, the Hearing Officer was not convinced that a reasonable person in the applicant's position ought to have known not to apply for the registration of the trade mark. Therefore, the ground of opposition under section 62A was not established. However, the Hearing Officer found that the opponent had established another ground of opposition under the Act.

Consequently, the applicant was unsuccessful. The Hearing Officer refused to register the trade mark application no. 1181572. The opponent was awarded costs against the applicant.