Re: Opposition by Zillow, Inc. to registration of trade mark application 1872671 (20, 42) - Zillo + Hutch (Figurative) - in the name of Zillo & Co Pty Ltd

This matter concerned an opposition by Zillow, Inc. to the registration of the trade mark application 1872671, a figurative mark comprising "Zillo + Hutch", filed by Zillo & Co Pty Ltd. The opposition was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks. Zillow, Inc. alleged that the applicant's conduct in filing the application was in bad faith, relying on evidence of its own extensive use of the "ZILLOW" trade mark in connection with online real estate services and its investment in a company called Hutch.

The primary legal issue before the delegate was whether Zillow, Inc. had established any of the grounds of opposition it nominated, specifically focusing on the ground of opposition under section 62A of the *Trade Marks Act 1995* (Cth), which relates to bad faith. The delegate was required to determine if the applicant's actions in filing the trade mark application were unscrupulous, underhanded, or unconscientious, based on the evidence presented.

The delegate considered the evidence filed by Zillow, Inc., which included a declaration detailing its significant use of the "ZILLOW" mark and its investment in the interior design company Hutch. However, the delegate found that a mere assertion of awareness by the applicant of Zillow, Inc.'s activities was insufficient to establish bad faith. The delegate concluded that the evidence did not satisfy the threshold for finding that the applicant's conduct was unscrupulous, underhanded, or unconscientious. Consequently, the ground of opposition under section 62A was not established.

As Zillow, Inc. failed to establish any of the grounds of opposition, the delegate ordered that trade mark application no. 1872671 could proceed to registration, subject to a one-month waiting period from the date of the decision, unless an appeal was filed. The delegate also awarded costs against the Opponent in favour of the Applicant.