The Applicant's conduct in adopting "Koythin" as a trade mark indicates an intention in bad faith to:

(a) piggy-back off the Opponent's goodwill and reputation in the Prior Mark to generate interest in relevant goods, which in turn is diluting and damaging, or will dilute and damage, the Opponent's goodwill and reputation in the Prior Mark;

(c) disrupt or negatively affect the Opponent's business and the Prior Mark.

The conduct of the Applicant falls short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons (DC Comics v Cheqout Pty Ltd and Another [2013] FCA 478; (2013) 299 ALR 110, at [77]). A reasonable person standing in the Applicant's shoes would have been aware that he/she ought not to apply for registration of the Trade Mark.

1. The Opponent's evidence establishes use of the Trade Mark in Australia before the Relevant Date of mugs/cups and saucers being the same or similar to some of the Applicant's Goods. Chunmei provides details of multiple orders of goods under the Trade Mark in Australia from 7 June 2024, sponsored listings on Amazon Australia from 6 June 2024 and customer reviews of the Opponent's Goods on Amazon from 2022 including one from Australia in mid-2023. In addition, Chunmei provides a summary of sales from June to December 2024.
2. As far as I am aware, the Trade Mark is an invented word with no meaning in relation to the Applicant's Goods. Despite the Opponent's allegations that the Trade Mark has been filed in bad faith, the Applicant has not filed any evidence in answer to explain the reason for the adoption of the Trade Mark which has clearly been used by the Opponent in Australia and overseas for the same goods as those claimed in the Application.
3. Moreover, the Opponent alleges that the Application is just one of over 90 marks filed by the Applicant in a short period of time covering goods in classes 3, 7, 8, 9, 10, 11, 14, 16, 18, 20, 21, 22, 24, 25, 26, 27 and 28. Despite being challenged in the Opponent's SGP and evidence that these applications have been filed in bad faith and without the Applicant having a business capable of using such a large number of trade marks for such diverse goods, the Applicant has not answered the Opponent's allegations.
4. In my view, the Opponent's evidence has narrowly succeeded in raising a cloud of questionable circumstances sufficient to establish a prima facie case that the Application was filed in bad faith. The absence of an Australian residential or business address does not of itself indicate bad faith and notably, the Opponent also appears to lack such an address but is using the Trade Mark in Australia. Ideally, the Opponent's evidence would have demonstrated why several of the Applicant's marks have been opposed or shown that some marks are filed or used by other traders. Nevertheless, I accept that a genuine question arises given the Opponent's evidence of prior use of the identical mark before the Relevant Date for some of the Applicant's Goods, the number of marks filed in a short period, the distinctiveness of the marks, and the broad range of classes claimed. I consider that these factors establish a prima facie case of bad faith and that the Applicant should have provided at least a minimal response to the Opponent's allegation that this Application forms part of a pattern of bad faith filings. The Applicant need not have expended much effort in resisting the allegation but some reply is needed refuting the claims raised by the evidence before me. In the absence of any response from the Applicant, on the balance of probabilities, I am satisfied that the Applicant's motivations in filing the Application fall short of acceptable commercial behaviour and that the Application was filed in bad faith.
5. The Applicant has established a ground of opposition under s 62A for the Applicant's Other Goods.

(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. I have found that the Opponent has established a ground of opposition under s 62A. I therefore refuse to register the Trade Mark.
2. If the Registrar is served with a notice of appeal, I direct that the refusal of the Trade Mark shall not be recorded until the appeal has been discontinued or, in the event of a decision from the Court, that the registration be dealt with as the Court sees fit.
3. The Opponent sought an award of costs. As the Opponent has succeeded in its opposition, I award costs against the Applicant under s 221 in the amounts set out in Schedule 8 of the Regulations.

[1] Unless otherwise stated, each reference to a section or regulation is a reference to a section of the Trade Marks Act 1995 (Cth) ('Act') or regulation of 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 Ltd [2015] FCAFC 156, [132]-[133] (Besanko, Jagot and Edelman JJ).

[4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [2] (Kitto J).

[5] Source Homeloans Pty Ltd v Coles Group Ltd [2008] ATMO 17, [5]-[6] (Hearing Officer Thompson).

[6] [2012] FCA 81 ('Dodds-Streeton J) ('Fry Consulting').

[7] [2013] FCA 478 (Bennett J) ('DC Comics').

[14] Ibid [147], [148] and [165].