Re: Opposition by Swole Gym Wear Group Pty Ltd to registration of trade mark application 1859774 (25) - Swollen Society- in the names of Evan Berard and Mark Tucker

This decision concerns an opposition by Swole Gym Wear Group Pty Ltd to the registration of trade mark application number 1859774, "Swollen Society," in the names of Evan Berard and Mark Tucker. The opposition was heard by Nicholas Smith, Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer were whether the trade mark application should be refused registration on the grounds of opposition under sections 44 and 62A of the *Trade Marks Act 1995* (Cth). Section 44 relates to the use of trade marks that are identical or deceptively similar to earlier trade marks, while section 62A concerns opposition based on bad faith.

The Hearing Officer found that the opponent, Swole Gym Wear Group Pty Ltd, had not established either ground of opposition. Specifically, regarding the bad faith ground under section 62A, the Hearing Officer noted that the onus was on the opponent to prove bad faith, which is a serious allegation not easily found. The mere awareness of the opponent by the applicant was insufficient. As the Hearing Officer had already found that the applicant's trade mark was not deceptively similar to the opponent's trade marks, and given the limited evidence of bad faith and the lack of evidence that the applicant sought to take advantage of any reputation of the opponent, the Hearing Officer was not satisfied that the applicant's conduct was unscrupulous, underhanded, or unconscientious. Consequently, the opposition under section 62A failed.

The Hearing Officer ordered that trade mark application number 1859774 may proceed to registration, subject to a one-month waiting period from the date of the decision, unless an appeal was filed. The Hearing Officer also awarded costs against the opponent in favour of the applicant.