Re: Opposition by Boohoo.com UK Limited to registration of trade mark application number 1865890 (classes 18, 25 and 35) - Babyboo Fashion in the name of Babyboo Fashion Pty Ltd.AndOpposition by..

Boohoo.com UK Limited (the Opponent) opposed the registration of trade mark application number 1865890 (and related applications) by Babyboo Fashion Pty Ltd (the Applicant) in classes 18, 25, and 35. The Opponent sought to prevent the registration of the trade mark "Babyboo Fashion" on various grounds under the *Trade Marks Act 1995* (Cth), including those relating to bad faith and deceptive or misleading conduct. The decision was made by Louise Tuohy.

The primary legal issues before the court were whether the Applicant's trade mark applications were filed in bad faith, and whether the proposed registration would be deceptive or misleading. The Opponent bore the onus of proving these grounds on the balance of probabilities. The Opponent argued that the Applicant, given its director's experience in the fashion industry and the timing of the applications shortly after receiving a letter of demand, must have been aware of the Opponent's well-established "BOOHOO" brand and deliberately copied its specifications of goods and services.

Her Honour considered the definition of bad faith, noting that it requires conduct of an unscrupulous, underhand, or unconscientious character, and that mere negligence or incompetence would not suffice. While acknowledging that the Applicant's trade mark applications were filed shortly after the Opponent's letter of demand, and that the Applicant would have been aware of the Opponent's trade marks at the time of filing, Her Honour found that mere knowledge of another's trade mark does not, in itself, constitute bad faith. Furthermore, the court found that the breadth of the Applicant's specifications of goods and services was not uncommon and that it was open to the Applicant to select specifications aligned with its commercial objectives. On balance, Her Honour concluded that there was insufficient cogent evidence to infer bad faith or to establish that the grounds for opposition under section 62A of the Act had been met.

Consequently, the Opponent did not establish any of the grounds for opposition. The trade marks were therefore permitted to proceed to registration.