Re: Oppositions by George Marquis to registration of trade mark application numbers 2405668 VIC SkiRIDERS (fig.) and 2419427 VICTORIAN SkiRIDERS (fig.) - both in class 25 - in the name of Peter Kovas

2025 ATMO 263

Trade Marks Act 1995 (Cth) - opposition under section 52 - ss 58 and 62A considered - no grounds established - trade marks to proceed to registration

1. This decision concerns oppositions under s 52 of the Trade Marks Act 1995 (Cth)[1] by George Marquis ('Opponent') to registration of the trade marks detailed below in the name of Peter Kovas ('Applicant'):

1. Collectively, applications 2405668 and 2419427 are referred to as the 'Applications'. The oppositions are referred to as the '668 opposition' and '427 opposition' as relates to each of the respective marks. The 668 Mark and 427 Mark are together referred to as the 'Trade Marks'.
2. Following the advertisements of acceptance of the Applications for possible registration, the Opponent filed Notices of Intention to Oppose followed by its Statements of Grounds and Particulars ('SGPs'). The Applicant subsequently filed Notices of Intention to Defend.
3. The parties then had an opportunity to file evidence in accordance with the Regulations. The Evidence in support ('EIS'), evidence in answer ('EIA') and evidence in reply ('EIR') filed was essentially the same evidence in respect of both oppositions. as detailed below.
4. Once the time for filing evidence had concluded, the parties were given the opportunity to request a hearing. The Applicant ultimately asked to be heard by way of written submissions and the Opponent did not ask to be heard. The Applicant's written submissions, prepared by Chloe Cort of Baxter IP Patent and Trade Mark Attorneys, were filed on 13 October 2025 in the 427 opposition and on 28 November 2025 for the 668 opposition. These matters have been allocated to me to determine as a delegate of the Registrar of Trade Marks and I do so based on the aforementioned materials.

1. The SGPs each nominate grounds of opposition under ss 58 and 62A.
2. The Opponent carries the burden of establishing a ground of opposition[2] on the balance of probabilities.[3] The date at which the rights of the parties are to be determined in each proceeding is the filing date of the relevant application (which is also the priority date of each application).[4] Nothing turns on the six week difference in the filing dates. In each case, a reference to the Relevant Date is a reference to the filing date of the relevant application.

1. The following evidence was filed in the proceedings:

Declaration of George Marquis made on 23 September 2024 with attachment ('Marquis')

Declaration of George Marquis made on 18 October 2024 with attachment[5]

Declaration of Peter Kovas dated 22 January 2025 with Exhibits PK1 to PK14 including Confidential Exhibits PK2, PK4, PK9 to PK14 ('Kovas 1')

Declaration of Peter Kovas dated 22 January 2025 with Exhibits PK1 to PK8 including Confidential Exhibits PK2 to PK4 ('Kovas 2')[6]

Declaration of George Marquis made on 11 May 2025 with attachments ('Marquis 2')

Declaration of George Marquis made on 30 March 2025 with attachments[7]

1. In summary, both the Applicant and the Opponent were members of a Facebook group named Victorian Ski Riders at https://www.facebook.com/groups.vicskiriders ('Initial FB Group'), established in July 2019. The Opponent claims that the Initial FB Group was created by him whereas the Applicant claims that the group was jointly founded by the Applicant, the Opponent and Jason Govaars ('Govaars') (hereinafter collectively referred to as the 'Founders'). The parties agree that the Applicant designed the Trade Marks. The Trade Marks have been used in relation to apparel and other merchandise which has been sold to members of the Initial FB Group. Following a dispute with the Opponent, the Applicant and Govaars left the Initial FB Group and created a new Vic Ski Riders group.

1. In Marquis 1, the Opponent claims to have created the Initial FB Group and invited over 1,000 jet ski friends to join the group including the Applicant, Govaars and John Grapsas ('Grapsas').
2. The Opponent was the 'Creating Admin' of the Initial FB Group. Later, the Applicant requested to be upgraded from a Moderator to an Administrator of the group. The Opponent checked Facebook's rules and found that the Creating Admin could not be removed from the group as long as they remained an administrator. The Opponent discussed with the Applicant that, as the Creating Admin, he would have the final say in any decision concerning the group. The Applicant agreed and was granted administration rights.
3. On 13 January 2021, the Opponent registered Victorian Ski Riders as a business name because 'we were carrying on a business, promoting events, group rides, merchandise'.
4. After an unsuccessful attempt to sell hoodies by 'the Moderation team', in February 2022, a VICTORIAN SKI RIDERS Logo was designed in February 2022 for use on rash shirts. The Opponent acknowledges that the Applicant was probably responsible for the design. The Opponent received his rash shirt in Apil 2022 and wore it during a group jet ski ride on 4 August 2022. After breaking his leg, the Opponent states the Applicant created the 668 Mark and applied it to stickers ('Stickers'), which were sold and used to promote the Initial FB Group.
5. In February 2023, Florida Ski Riders supplied some of the Initial FB Group members with jerseys bearing the 668 Mark, and words Victorian Ski Riders and Vic Ski Riders.
6. By October 2023, a dispute had arisen in the administration team of the Initial FB Group which resulted in the Applicant and Govaars leaving the group.
7. In November 2023, the Opponent registered Vic Ski Riders as a business name. Around this time, the Opponent's relationship with the Applicant, Govaars, and Grapsas was hostile even though the Opponent told them they were free to start a new group under a different name. Instead, the Opponent says the Applicant acted in bad faith by filing the Applications, setting up a new Vic Ski Riders Facebook page and attempting to poach members of the Initial FB Group.

1. According to Kovas 1, the Initial FB Group was jointly established by the Applicant, the Opponent and Govaars (collectively the 'Founders'). The Founders agreed to the Opponent using his personal Facebook account to create the Initial FB Group with each of the Founders to be an administrator of the group.
2. Kovas 1 declares that between December 2019 and October 2023, he used his expertise in social media, photography and videography to design and enhance the Initial FB Group page. He regularly uploaded original content including flyers for promotion of social events.
3. In January 2022, the Applicant decided to design a Vic Ski Riders logo and Victorian Ski Riders logo for rash shirts to sell to the Initial FB Group members and attendees of their events. The Applicant informed the Opponent and Govaars of his plans and designed the following logo:

('Early Victorian Ski Riders Logo')

1. Kovas 2 exhibits a screenshot from Adobe Photoshop showing that the Early Victorian Ski Riders Logo was created on 3 February 2022.[8]
2. Subsequently, the Applicant secured exclusive rights to use the Florida Ski Riders trade mark in Australia and to create adaptations of the mark, from Randy Cabrera, founder of Florida Ski Riders. This arrangement was formalised through a written agreement dated 28 October 2023, a redacted copy of which is exhibited.[9]
3. Kovas 2 declares that between about 1 February 2022 and 26 October 2023, he marketed and supplied merchandise including apparel bearing the Early Victorian Ski Riders Logo by promoting this merchandise in the Initial FB Group. In support of this claim, Confidential Exhibits PK 2 and PK3 of Kovas 2 include:
   • correspondence with Mick Robertson of Aquanaut Pty Ltd, trading as Neptune Sports, between 3 February 2022 and 29 May 2022 regarding ordering custom rash shirts and other apparel with custom design(s) such as the Early Victorian Ski Riders Logo, sample logo sent to Aquanaut and tax invoices from Aquanaut/Neptune Sport with proof of payment by the Applicant;
   • screenshots of Facebook Messenger exchanges with 22 members of the Initial FB Group relating to orders and payment of rash shirts bearing the Early Victorian Ski Riders Logo; and
   • screenshots of payments made by purchasers to the Applicant's bank account for the Early Victorian Ski Riders logo rash shirts ordered on or about 9 February 2022.
4. In July 2022, the Applicant added 'Buy and Sell' features to the Initial FB Group page to market and sell his apparel. He also changed the URL for the Initial FB Group to https://www.facebook.com/groups/vicskiriders. At this time, the Applicant also updated the Early Victorian Ski Riders Logo to the 427 Mark. The Applicant claims copyright ownership of both versions of the Victorian Ski Riders Logo. Screenshots from Adobe Photoshop and the digital file of the Applicant's personal computer are provided showing a creation date of 31 July 2022.[10]
5. In early August 2022, the Applicant created the 668 Mark by adapting the Florida Ski Riders mark, using Adobe Photoshop. The Applicant claims copyright ownership of the 668 Mark with supporting evidence including screenshots showing the creation dates of the 668 Mark on 1 (coloured version) and 2 August 2022 (black & white version).
6. On 29 August 2022, the Applicant requested a quote for the creation of the Stickers. An order for the Stickers was placed in January 2023. These Stickers are distributed as promotional items with the purchase or apparel bearing the 668 Mark. Copies of invoices for Sticker orders in August 2022 and January 2023 are provided with a copy of the artwork of the 668 Mark provided for creation of the stickers.
7. In January 2023, Randy Cabrera of Florida Ski Riders asked the Applicant to assist in setting up the Florida Ski Riders ecommerce store which he agree to do provide he could include a section for selling his Victorian Ski Riders Logo apparel and would receive payment from Florida Ski Riders for any sales of such apparel where the purchaser is situated in Australia.
8. After a dispute with the Opponent in late October 2023, the Applicant and Govaars left the Initial FB Group and removed content in which the Applicant claimed copyright, from the group's page. They, along with Grapsas, established a new Facebook Group called Vic Ski Riders at https;//www.facebook.com/groups/victorianskiriders ('Applicant's FB Group'). The Applicant added Buy and Sell features to this group page on about 1 November 2023 to sell apparel. The Applicant asserts that the Opponent was aware of these activities before the Opponent registered the business name VIC SKI RIDERS on 10 November 2023. Kovas 1 exhibits a screenshot of the landing page of the Applicant's FB Group page, examples of the Applicant's apparel bearing the 668 Mark and images of buyers wearing that apparel.
9. To promote his apparel, the Applicant uploaded images of his apparel featuring the 668 Mark, buyers and event attendees wearing the apparel. The Applicant also licensed the domain names visskiriders.com, victorianskiriders.com and vicskiriders.com.au in November 2023 to promote his apparel. The vicskiriders.com URL links to the Florida Ski Riders e-commerce store webpage and the Applicant receives payments from Florida Ski Riders for any sales of his apparel through that store where the purchaser is located in Australia. The www.vicskiriders.com.au domain redirects to the vicskiriders.com website which the Applicant established in November 2023. The website at www.victorianskiriders.com is linked to the Applicant's FB Group page. Exhibited to Kovas 1 are extracts from the vicskirdiers.com website homepage in January 2025, merchandise page of this website and Applicant's FB Group page from early 2025.
10. As evidence of the sale of the Applicant's Goods bearing the 668 Mark, Kovas 1 exhibits:
    • copies of 14 orders for custom-made jerseys bearing the 668 Mark that the Applicant placed through the Florida Ski Riders e-commerce store between 14 November 2022 and 7 February 2025 for buyers located in Australia and the corresponding invoices;[11]
    • screenshots of Facebook messenger exchanges with 57 individuals in Australia regarding jersey orders and payment of those orders that the Applicant placed with Florida Ski Riders e-commerce store;[12]
    • payment receipts made by individual buyers in Australia for custom-made apparel, deposited to the Applicant's bank account between 22 February 2023 and 21 February 2025;[13]
    • tax invoice from Emerald Dreams Textiles, dated 3 July 2024, documents the purchase of custom-made long-sleeve T-shirts with the VIC SKI RIDERS figurative mark for Australian buyers;[14]

• three tax invoices from LOD Workware (trading as LOD PROMOTIONS), dated 1 March 2024, 18 March 2024, and 27 November 2024, for orders of custom-made caps;[15]and
  • three tax invoices from Xpress Tees, dated 21 August 2024, 27 August 2024, and 11 November 2024, for orders of custom-made t-shirts.[16]

1. In March 2024, Mr Kovas contributed an article to the March-April 2024 issue of the Pro Rider Watercraft magazine, a globally distributed publication for watercraft enthusiasts. The article included digital photographs from Vic Ski Riders events, showing buyers wearing custom-made apparel featuring the 668 Mark. A copy of this article is exhibited.[17]

1. Marquis 2 repeats parts of the information in Marquis 1. However, Marquis 2 states that the founding members of the Initial FB Group were himself, Mark Coleman ('Coleman'), Dean Freeman, Levin Farr and Mark McHenry. Coleman has provided a statement confirming that the Initial FB Group was created by the Opponent, and consisted of the original founding members identified in Marquis 2, that the Opponent would be the sole administrator and that the Opponent invited about 1000 friends to join the group. An extract from Facebook included in Marquis 2 shows that the Applicant and about 8 other people (including Coleman, Dean Freeman and Mark McHenry) accepted the Opponent's invitation to be a Moderator of the Initial FB Group on 18 December 2019. A further Facebook extract shows that the Applicant became an Admin of the group on 13 December 2020 and that Govaars became an Admin at the Applicant's invitation on 2 November 2021. The Opponent says that these extracts reveal that neither the Applicant nor Govaars were 'foundational in the creation of Victorian Ski Riders'. The activity logs for the Initial FB Group from 16 December 2019 to 21 December 2020, and 1 January 2021 to 31 December 2021 are provided.
2. According to Marquis 2, the Applicant created the Victorian Ski Riders logos at his request to trial on merchandise to promote Victorian Ski Riders and as the Opponent created the group, he automatically has a license to use the produced artwork. Further, the Opponent says that the Applicant was not marketing his own apparel but was only consolidating orders on a trial basis before they decided which items to proceed with. The Opponent alleges that he introduced the Applicant to Randy Cabrera of Florida Ski Riders and to the rash shirt manufacturer. According to the Opponent, he suggested that the Applicant be paid for his work on the Florida Ski Riders website and proposed to negotiate a profit share with them on the Applicant's behalf but the Applicant proceeded to reach the agreement referred to at [21] without the Opponent's knowledge.
3. Marquis 2 claims that the merchandise referred to in the EIA was created after the Applicant left the Initial FB Group and that the Applicant has engaged in bad faith by renaming the Applicant's FB Group as Vic Ski Riders after it was created. According to Marquis 2, Facebook does not permit a subsequent group to be created with the same name as an existing group but a loophole allows a group to be renamed after creation to have the same name as an existing group. After the Applicant's FB Group was created and renamed, the Applicant had Facebook delete the Initial FB Group on the basis it breached his trade mark.

1. Section 58 provides that a trade mark may be opposed on the ground that a person other than the applicant is the owner of the trade mark.
2. Although the term 'owner' is not defined in the Act, it is well established that the owner of a trade mark is the person who first uses it in Australia, or first files a trade mark for it in Australia, for the relevant goods (or services), whichever is the earlier.
3. Therefore, the Applicant is prima facie considered to be the owner of the Trade Marks under the Act. Consequently, it is the Opponent who bears the evidential onus of establishing that the Applicant was not the owner of the Trade Marks at the Relevant Date. To achieve this, the following requirements must be satisfied:
   • the trade mark(s) relied upon by the Opponent are at least substantially identical to the Trade Marks;[18]
   • the Applicant's Goods are the 'same kind of thing' as the goods for which the trade mark(s) relied upon by the Opponent have been used;[19] and
   • a person other than the Applicant has the earlier claim to ownership based on use of the trade mark(s) relied upon by the Opponent prior to whichever is the earlier of: (a) the application to register the Trade Mark or (b) any actual use of the Trade Mark.[20]
4. In its SGPs, the Opponent particularises this ground in both opposistions as set out below:

This was an unregistered mark Vic Ski Riders that I had used in conjunction with Victorian Ski Riders. Since the business was registered 13/01/2021.

The mark has been used to Promote Events, Merchandise has been created and sold including Stickers, Hoodies and Jerseys.

These are not just business names but marks of my business.

1. To succeed under s 58, the Opponent needs to show use of a mark(s) which is substantially identical to the 668 Mark and/or 427 Mark in the course of trade for clothing, footwear and headgear or the same kind of thing. However, the Opponent's evidence is primarily focused on the creation of the Initial FB Group and does not demonstrate that he conducted business under the names 'Victorian Ski Riders' or 'Vic Ski Riders' in relation to clothing, footwear or headgear. Simply registering a business name does not confer any rights in use of that name as a trade mark and using these descriptive terms on Facebook for a jet ski enthusiasts group does not establish ownership of the Trade Marks for the relevant goods.
2. The only evidence the Opponent provides about the creation of the Trade Marks is the Opponent's unsubstantiated statement in Marquis 2 that the Applicant was asked by him to create the Trade Marks and that as the Initial FB Group's creator, he is automatically licensed to use them. This assertion is incorrect. Copyright in a logo is owned by its creator (even if created for payment at the request or direction of an employer), and no other person has a right to use the logo unless there is a signed contract, copyright assignment with the designer or licence. There is no evidence of any such agreement in this case. Moreover, there is no documentary evidence that the Opponent has ordered, offered to sell or sold any merchandise bearing the Trade Marks or similar marks. The only documentary evidence provided by the Opponent pertains to the creation of the Initial FB Group which does not constitute use as a badge of origin for the relevant goods.
3. Although the burden is on the Opponent to establish that the Applicant is not the owner of the Trade Marks, I note that the Applicant claims copyright ownership in the Trade Marks as the 'licensee of the author and owner of the original works' being the Florida Ski Riders Mark, pursuant to an oral agreement with Randy Cabrera, founder of Florida Ski Riders, which agreement was subsequently formalised in writing. The Applicant has also provided evidence of arranging merchandise bearing the 668 Mark, taking orders and receiving payment for those orders to his personal account before the Relevant Date. All of the supporting documents are in the name of the Applicant as an individual and there is no mention of the Opponent's business. The Opponent does not claim that he received any money from these orders nor does he provide any documentary evidence that the merchandise was created and sold for the benefit of the Initial FB Group. Other than the unsworn statement of Mark Coleman, the Opponent has not produced any proof to dispel the Applicant's claim that it was his initiative to create and use the Trade Marks on merchandise for his own personal profit.
4. In the absence of any documentary evidence showing that the Opponent used the Trade Marks, or a mark with additions or alterations not substantially affecting the identity of the marks, for the Applicant's Goods or the same kind of thing before the Relevant Date, or that the Applicant is otherwise not the owner of the Trade Marks, the Opponent has not discharged his evidentiary onus. The s 58 ground of opposition is unsuccessful.

1. Section 62A provides that the registration of a trade mark may be opposed on the ground that the application was made in bad faith.
2. The Act does not define the term 'bad faith' but in DC Comics v Cheqout Pty Ltd, Bennett J noted that:

Bad faith is a combined test that involves subjective and objective elements. The subjective element refers to the knowledge of the relevant person at the time of making the application. The objective element requires the decision-maker to decide whether, in the light of that knowledge, the relevant person's behaviour fell short of acceptable commercial standards.[21]

1. Accordingly, I must determine whether, at the Relevant Date, 'in all the particular circumstances, the [applicant's] knowledge was such that his decision to apply for registration at the relevant date would be regarded as in bad faith by persons adopting proper standards'.[22] There must be a nexus between the bad faith conduct of an applicant and the filing of the opposed application.
2. The onus is on the Opponent to establish bad faith and it will not be found easily given the serious nature of the allegation.[23]
3. I also note that awareness or mere knowledge of another person's trade mark before the relevant filing date, without more, does not in itself constitute a basis for a finding of bad faith.[24]
4. In the SGPs, the Opponent claims that the Applications have been filed in bad faith because his business names Vic Ski Riders and Victorian Ski Riders were registered before the Relevant Date and the Applicant was involved in setting up a new Facebook group Vic Ski Riders and poached members from the Initial FB Group. The Opponent's SGPs also state:

In your example on your website of Bad Faith the Copyright/Trademark was re-assigned to the original creator of the IP (or who the IP was created for, when a false claim was made. In this circumstance Peter Kovas has made a false claim.

1. I am not sure what this final claim is intended to mean. It may be that the Opponent is claiming copyright in the Trade Marks but if so, this is not supported by the parties' evidence. Further, the Opponent acknowledges in its evidence that the Applicant created the marks.
2. The Applicant argues that the Applicant independently created the Trade Marks and applied the marks to apparel which he has sold commercially since 2022. In the Applicant's submission, the Opponent's allegations concerning 'interpersonal disputes about the management of a Facebook group, alleged poaching of members, and disagreements over control of community pages' are irrelevant to the question of whether the Applications were filed in bad faith.
3. I agree with the Applicant that the creation of a new Facebook Group or any poaching of members from the Initial FB Group has no bearing on whether the Applications were filed in bad faith. The Opponent has not provided any evidence that the Initial FB Group had undertaken any commercial activities before the Relevant Date. In particular, the Opponent has not adduced any documentary evidence that either the Opponent or the Initial FB Group had any involvement in the creation of the Trade Marks or merchandise bearing the marks. The terms Vic Ski Riders and Victorian Ski Riders are not distinctive and the creation of a Facebook group under these names does not give the Opponent any rights in these terms as a badge of origin for the Applicant's Goods. Nor does registration of the business names confer any trade mark rights in those names. The Applicant has established that he created the Trade Marks and believes that he owns copyright in the marks. Based on the Applicant's evidence, I am satisfied that the Applicant considered he was the owner of the Trade Marks at the Relevant Date and was entitled to file the Applications. In my opinion, there is nothing unscrupulous or underhanded in the Applicant's conduct in filing the Applications.
4. Given I am not satisfied that the Applications were filed in bad faith, the s 62A ground of opposition fails.

(1) Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

(b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

having regard to the extent (if any) to which any ground on which the application was opposed has been established.

1. The Opponent has failed to establish any of the grounds of opposition it nominated in the SGPs. Trade mark application numbers 2405668 and 2419427 may proceed to registration not less than one month from the date of this decision. If the Registrar is served with a notice of appeal before that time, I direct that registration shall not occur until either the appeal is withdrawn or discontinued. Otherwise, the disposition of the Applications should be in accordance with the Court's order or direction.
2. The Applicant has sought costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. With respect to the opposition to application 2405668, I award costs against the Opponent under s 221 in the relevant amounts under Schedule 8 of the Regulations and for application 2419427, costs are to be taxed in the same manner as indicated in Hume Industries (Malaysia) Berhad v James Hardie & Coy Pty Ltd.[25]

[1] Unless otherwise indicated, any references to sections or regulations, below, are references to sections or regulations of the Trade Marks Act 1995 (Cth) ('Act') or the Trade Marks Regulations 1995 (Cth) ('Regulations'), respectively.

[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

[3] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelmann JJ).

[4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82; (1954) 91 CLR 592, 595 (Kitto J).