Shenzhen Lixing Technology Co Ltd v Shiyu Zhang

This decision concerns an opposition filed by Shenzhen Lixing Technology Co Ltd (the Opponent) against the registration of the trade mark SAEEYCUE (Application No 2417839) by Shiyu Zhang (the Applicant) in Class 21. The Opponent sought to oppose the registration on grounds including that the Applicant was not the owner of the trade mark under section 58 of the *Trade Marks Act 1995* (Cth), and that the application was filed in bad faith under section 62A of the Act. The Applicant did not file any evidence in response to the opposition.

The delegate of the Registrar of Trade Marks was required to determine whether the Opponent had established its grounds of opposition. Specifically, the delegate had to consider whether the Opponent had demonstrated prior use and ownership of the trade mark SAEEYCUE for "Facial gua sha tools" and whether the Applicant's application for the full range of goods in Class 21 was filed in bad faith. The relevant date for assessing ownership and use was the filing date of the application, 2 January 2024.

In relation to the section 58 ground, the delegate found that the Opponent had provided sufficient evidence of using the identical mark SAEEYCUE in Australia since April 2021 for "Facial gua sha tools," which were the same kind of goods as those specified in the application. As the Applicant had not filed any evidence of use, the Opponent successfully established that the Applicant was not the owner of the trade mark for these specific goods. However, the delegate found that the Opponent's goods were not the "same kind of thing" as the Applicant's other goods in Class 21, such as toilet paper holders and kitchen utensils, and therefore the section 58 ground was not established for those items. Regarding the section 62A ground, the delegate considered the Opponent's evidence that the Applicant had filed numerous trade mark applications in Australia for marks already registered by others overseas. In the absence of any explanation from the Applicant, the delegate concluded that the application was filed in bad faith, establishing this ground for the Applicant's Other Goods.

Consequently, the delegate refused to register the trade mark SAEEYCUE. The Opponent was awarded costs against the Applicant.