Re: Opposition by Kiss Nail Products, Inc to registration of trade mark application no.(s) 1743097 (3) - KIS (stylized) and 1743098 (3) - KIS in the name of KIS My Body Pty Ltd

This matter concerned an opposition by Kiss Nail Products, Inc. to the registration of two trade mark applications, no. 1743097 for the stylized mark "KIS" and no. 1743098 for the word mark "KIS", both in the name of KIS My Body Pty Ltd. The opposition was heard by Bianca Irgang, a Hearing Officer.

The primary legal issue before the Hearing Officer was whether the registration of the applicant's trade marks should be refused on the grounds of opposition under sections 44, 60, and 42(b) of the *Trade Marks Act 1995* (Cth). The opponent relied predominantly on its use and reputation in the trade mark "KISS", including registered trade marks for this word. The Hearing Officer was required to determine if the opponent's trade marks had acquired a reputation in Australia before the priority date of the applicant's applications, and if so, whether the use of the applicant's marks would be likely to deceive or cause confusion.

The Hearing Officer found that the opponent had established the ground of opposition under section 60 of the Act. Applying the principles from *Registrar of Trade Marks v Woolworths*, the Hearing Officer considered whether a significant number of persons in Australia recognised the opponent's trade marks before the priority date, and whether this reputation would likely lead to confusion regarding the source of the goods. The Hearing Officer determined that the opponent had met the onus of proof in relation to section 60.

Accordingly, the Hearing Officer refused to register trade mark application nos. 1743097 and 1743098. Costs were awarded against the applicant.