Re: Opposition by Rochelle Lee Bogle to an application under section 92 of the Act by Hipster Holdings Pty Ltd for removal of trade mark number 1795606 (43) - Miss Chats in the name of Rochelle Lee Bogle

This matter concerned an opposition by Rochelle Lee Bogle to an application by Hipster Holdings Pty Ltd for the removal of trade mark number 1795606, known as "Miss Chats". The application for removal was brought under section 92 of the *Trade Marks Act 1995* (Cth). The decision was made by Nicholas Smith, Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer were whether the grounds for removal under section 92(4)(a) of the Act were established, and consequently, whether the trade mark should be removed from the Register. Specifically, the opposition centred on the applicant's intention to use the trade mark at the time of filing the application.

The Hearing Officer noted that the onus was on the opponent to establish the grounds for removal, but this onus was not considered arduous. Drawing on established principles from cases such as *Aston v Harlee Manufacturing Co* and *Structureco Inc v Starite Distributors Pty Ltd*, the Hearing Officer held that the filing of a trade mark application itself constitutes prima facie evidence of an intention to use the mark. Furthermore, the opponent's evidence, which included a declaration stating the trade mark was in use and detailing the opponent's involvement in designing the business and registering the associated domain name, was sufficient to satisfy the onus. The applicant provided no evidence in response. The Hearing Officer found that the opponent had satisfied its onus under section 100(1)(a) of the Act.

Consequently, the Hearing Officer decided that the opposition to the removal of the trade mark in respect of the registered goods was established. The Hearing Officer ordered that costs be awarded against the applicant in favour of the opponent.