Re: Opposition by Brightflash USA LLC to registration of trade mark application 1885531 (9) - iWatchiT (Figurative) - in the name of China Trade Services Pty. Ltd

This matter concerned an opposition by Brightflash USA LLC to the registration of the figurative trade mark "iWatchiT" (application no. 1885531) by China Trade Services Pty. Ltd. The opposition was brought before a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the opponent had established its sole ground of opposition, which was based on section 44 of the *Trade Marks Act 1995* (Cth). This section concerns the registration of trade marks that are identical or deceptively similar to earlier trade marks. The delegate was required to determine this issue based on the evidence filed by the parties and written submissions, applying the ordinary civil standard of proof on the balance of probabilities, with the relevant date for assessing rights being 9 November 2017.

The delegate found that the opponent had failed to discharge the onus of proof resting upon it to establish the ground of opposition under section 44. Consequently, the delegate decided that the trade mark application could proceed to registration. The delegate also awarded costs against the opponent in favour of the applicant.