Re: Opposition by 3Floorsup Pty Ltd to registration of trade mark application number 1829549 (class 42) Fiix in the name of Fiix Inc

This matter concerned an opposition by 3Floorsup Pty Ltd (the Opponent) to the registration of the trade mark application number 1829549, "Fiix" in class 42, filed by Fiix Inc (the Applicant). The opposition was heard by Jock McDonagh, a Hearing Officer.

The legal issues before the Hearing Officer were whether the Opponent had established any of the grounds for opposition relied upon, specifically under sections 42(b), 44, 58, 60, and 62A of the *Trade Marks Act 1995* (Cth). The relevant date for assessing the rights of the parties was the filing date of the application, which was also the priority date for sections 44 and 60.

The Hearing Officer considered evidence regarding the Opponent's use of the trade mark "FIXD" for its Computerised Maintenance Management System (CMMS) software, which commenced in 2013 and was actively used from late August 2014, with a rebrand to FIXD occurring in 2015. The Applicant, founded in 2008, began offering its CMMS product in Australia in 2009 and coined its "FIIX" trade mark in March 2016, filing its Australian application in March 2017. The Hearing Officer found that the Opponent had failed to establish its opposition under section 62A, and by implication, had not established the other grounds pursued.

Consequently, the Hearing Officer decided that the trade mark application could proceed to registration, subject to the usual provisions regarding appeals. The Opponent was ordered to pay the Applicant's costs.