Re: Opposition by Apple Inc. to extension of protection to Australia of International Registration Designating Australia 1280843 (9) Tick Different (Fancy) (Australian Trade Mark Application No. 1743921) filed in..

This matter concerned an opposition by Apple Inc. (the Opponent) to the extension of protection to Australia of International Registration Designating Australia 1280843, a trade mark application for "Tick Different (Fancy)" filed by the Holder. The Opponent filed a Notice of Intention to Oppose and subsequently a Statement of Grounds and Particulars, raising grounds under sections 42(b), 44, 59, 60, and 62A of the *Trade Marks Act 1995* (Cth). The Holder filed a Notice of Intention to Defend. Evidence was filed by both parties, including declarations and exhibits, and the matter proceeded to a hearing before a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether any of the grounds of opposition raised by the Opponent had been established, and consequently, whether to refuse protection for the International Registration Designating Australia (IRDA) or to extend protection in respect of some or all of the goods or services listed. The Opponent, a well-known technology company, asserted that it had used the slogan "THINK DIFFERENT" extensively since 1997, including on product packaging for its iMac computers, and that this phrase was an ungrammatical phrase registered as its trade mark. The Opponent alleged that the Holder sought to misappropriate its goodwill by registering trade marks connected to the Opponent, particularly in light of commercial rivalry arising from the launch of the Apple Watch.

The delegate considered the evidence and submissions presented by both parties. While the Opponent provided evidence of its extensive use and registration of the "THINK DIFFERENT" mark, the delegate found that the grounds on which the IRDA was opposed had not been established. Accordingly, the delegate decided to extend protection to the IRDA. The decision noted that protection would proceed one month from the date of the decision, unless an appeal was filed, in which case protection would be subject to the outcome of any appeal. The delegate also awarded costs against the Opponent in favour of the Holder, applying the general rule that costs follow the event.