Re: Opposition by World Bodyboards Pty Ltd to registration of trade mark application no. 1624470 (25, 35) - BSC in stylized letters in the name of Body Science Properties Pty Ltd as trustee for The Body Science..

This matter concerned an opposition by World Bodyboards Pty Ltd to the registration of a trade mark application no. 1624470, for the stylized letters "BSC" in classes 25 and 35, by Body Science Properties Pty Ltd as trustee for The Body Science. The decision was made by Hearing Officer Bianca Irgang.

The primary legal issue before the Hearing Officer was whether the grounds of opposition raised by World Bodyboards Pty Ltd under the *Trade Marks Act 1995* (Cth) were established. Due to the opponent's failure to file evidence, only the ground of opposition under section 44 of the Act could be considered. The onus was on the opponent to establish this ground on the balance of probabilities.

The Hearing Officer found that the opponent had established the ground of opposition under section 44, which relates to deceptive similarity with an earlier registered or pending trade mark. However, the applicant had provided sufficient evidence to demonstrate that the exception under section 44(4) of the Act applied. This exception allows for registration despite the existence of an earlier trade mark if, among other things, the applicant can show that they have used their trade mark in good faith from a date prior to the priority date of the earlier trade mark.

Consequently, the Hearing Officer decided to allow the trade mark application to proceed to registration one month from the date of the decision, unless an appeal was filed. The Hearing Officer also awarded costs against the opponent.