Class 42: Design services; engineering services; engineering design; electrical engineering services (design); software engineering; design services in relation to power supply; engineering services in relation to power supply; product testing; advisory and consultancy services in relation to the foregoing

Endorsement: Evidence and/or other circumstances provided under subsection 41(4).

1. The Application was examined as required by s 31 and advertised for possible registration on 7 August 2024.
2. On 21 August 2024 the Opponent filed a Notice of Intention to Oppose the Application, followed by its Statement of Grounds and Particulars ('SGP') on 20 September 2024. The Applicant filed a Notice of Intention to Defend the opposition on 22 October 2024.
3. Thereafter the parties filed evidence in accordance with the Regulations. The Opponent filed the following evidence in support ('EIS'):
   • Declaration of Jordan Haddad, General Manager of the Opponent, made on 24 January 2025, with Exhibits A to O ('Haddad').

1. The Applicant filed the following evidence in answer ('EIA'):

• Declaration of Louise Bayliss, Managing Director and Chief Executive Officer of the Applicant, made on 22 April 2025 with Exhibit LBA-1 ('Bayliss').
  • ➢ Exhibit LBA-1 comprises the Declaration of Louise Bayliss, made on 3 July 2024, with Exhibits LB-1 to LB-20 filed with the Trade Marks Office in response to an examiner raising a distinctiveness objection under s 41.

1. The Opponent did not file evidence in reply.
2. Once time for filing evidence had ended both parties were given an opportunity to either request an oral hearing or a hearing by way of written submissions. Both parties requested a hearing by written submissions. The Opponent filed its written submission on 11 February 2026 prepared by Leanne Oitmaa and Sara Pearson of Griffith Hack Lawyers. The Applicant filed its written submissions on 20 February 2026 prepared by Savannah Hardingham and Erin Cassidy of Gadens. As the delegate of the Registrar of Trade Marks ('Registrar') I have decided this matter based on the particulars set out in the SGP, EIS, EIA and the parties' written submissions.

1. On 26 February 2026 the Applicant filed out of time evidence being a second Bayliss declaration. The Applicant asserted that the out of time evidence includes evidence from ASIC regarding its name change from SETEC BMPRO Pty Ltd and extracts of its predecessor in title to the Trade Mark, SETEC Holdings Pty Ltd. The out of time evidence also includes the Asset Sale Agreement between SETEC Pty Ltd (now named SETEC Holding Pty Ltd) and SETEC BMPRO Pty Ltd.
2. The out of time evidence in question concerns the Opponent's written submissions which raise allegations that the Applicant is not the owner of the Trade Mark and did not acquire the title to the Trade Mark from its predecessor in title.
3. Regulation 21.19 affords the Registrar discretion to consider whether available information is relevant and should be considered in making a decision in the proceedings. However, this regulation is not a substitute for the evidence stages of an opposition, and compelling reasons are required for inclusion of any new material that was not properly filed during the evidence stages.
4. In this matter, the ownership issue raised in Opponent's written submissions was not addressed in the SGP, and appears to be a naked attempt to invoke s 58, notwithstanding that my consideration is confined to s 41. Nonetheless, the Opponent argues that the Applicant was incorporated on 3 December 2020 and evidence dated before December 2020 ought to be disregarded as it has not been established that the use of the Trade Mark by SETEC Pty Ltd can be attributed to the Applicant. For the reasons which follow, the Applicant's evidence of use prior to incorporation does not affect the outcome of this matter, and I have therefore not considered it further.

1. The Opponent is an Australian company that has sold batteries, power storage units and related goods in Australia since 2006.
2. From at least September 2022 the Opponent has used slogans referring to 'power' and 'adventure' including 'Power your next adventure', 'Power up your outdoor adventures' and 'Powering your next adventures' in relation to its goods.

1. The Applicant is an Australian company established in December 2020. The Applicant designs, manufactures and sells power supply solutions to the automotive, communications, gaming, medical and science industries.
2. Both parties supply power solutions for the recreational vehicle industry.

1. In the SGP the Opponent nominated a single ground of opposition under s 41.
2. The date at which the rights of the parties are to be determined is the filing date of 19 April 2023 ('Relevant Date').
3. The Opponent bears the onus of establishing the ground of opposition.[3] The standard of proof is the ordinary civil standard of the balance of probabilities.[4]

41 Trade mark not distinguishing applicant's goods or services

(1) An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant's goods or services in respect of which the trade mark is sought to be registered (the designated goods or services) from the goods or services of other persons.

(2) A trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons only if either subsection (3) or (4) applies to the trade mark.

(a) the trade mark is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons; and

(b) the applicant has not used the trade mark before the filing date in respect of the application to such an extent that the trade mark does in fact distinguish the designated goods or services as being those of the applicant.

(a) the trade mark is, to some extent, but not sufficiently, inherently adapted to distinguish the designated goods or services from the goods or services of other persons; and

(b) the trade mark does not and will not distinguish the designated goods or services as being those of the applicant having regard to the combined effect of the following:

(i) the extent to which the trade mark is inherently adapted to distinguish the goods or services from the goods or services of other persons;

(ii) the use, or intended use, of the trade mark by the applicant;

(5) For the purposes of this section, the use of a trade mark by a predecessor in title of an applicant for the registration of the trade mark is taken to be a use of the trade mark by the applicant.

1. Section 41 must be assessed having regard to s 33, which embodies a 'presumption of registrability'. Section 33(3) compels the Registrar to accept a trade mark for registration unless the Registrar is satisfied that grounds exist for rejecting the Applications. In this matter the relevant question is that implied in s 41(2), namely whether the Trade Mark is inherently adapted to distinguish the Applicant's Goods and/or Services or whether either of ss 41(3) or 41(4) apply.
2. In determining the merits of the ground of opposition under s 41 consideration is required to be given to the extent of a trade mark's inherent adaptation to distinguish the goods and services. In Clark Equipment Co v Registrar of Trade Marks, Kitto J stated that this was to be assessed:

[B]y reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives - in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess - will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it.[5]

1. In the written submissions, the parties relied on Cantarella Bros Pty Limited v Modena Trading Pty Limited where the High Court indicated that the test for inherent distinctiveness under s 41 involves a two-step process. The first step requires consideration of the 'ordinary signification' of the words in Australia to those who will purchase, consumer or trade in the goods and/or services. The second step involves determining whether other traders might legitimately desire to use the words, wherein only a trade mark containing a direct reference (and not all allusive or metaphorical reference) can be held to be legitimately desired for use by other traders.[6]

1. In the SGP the Opponent particularised the ground of opposition as follows:

The trade mark POWERING YOUR ADVENTURES is not capable of distinguishing the applicant's goods and services from the goods or services of other traders because the words POWER, POWERING, ADVENTURE and ADVENTURES are commonly used terms by other traders in relation to the goods and services. The trade mark has been accepted on the basis of section 41(4), however, the Opponent submits that the evidence furnished is not sufficient to demonstrate that the trade mark does distinguish, or will distinguish, the goods or services being those of the applicant.

Other traders have used, and should be able to continue to use, the trade mark or similar trade marks in relation to the goods and services without the risk of trade mark infringement. In particular, the Opponent has been using the phrases POWER YOUR OUTDOOR ADVENTURE and POWERING YOUR NEXT ADVENTURE.

1. The Opponent submits the following in regard to the ordinary signification of the Trade Mark:
   • the ordinary signification of the slogan POWERING YOUR ADVENTURES in relation to batteries, power supply and power usage related goods and services is that those goods and services can be used to supply power to consumers when they go on adventures;

• the word POWER is commonly used to refer to electrical power and in the Trade Mark the word POWERING is used as a verb, which means 'to supply power';

• the word ADVENTURE is commonly used to refer to travelling and in particular travelling to remote locations or 'off the grid', and in the Trade Mark the word ADVENTURE is used to mean 'an exciting experience'; and

• the phrase POWERING YOUR ADVENTURES means that the Applicant's Goods and Services will provide electrical power to consumers when they are having adventurous travelling experiences.

1. Further, the Opponent submits that other traders are likely to legitimately desire to use the Trade Mark or a similar trade mark due to the descriptive meaning. The Opponent argues that this is supported by other traders having used the Trade Mark or similar trade marks using the words POWER and ADVENTURE. In support the Opponent exhibits a Google search on the words POWERING YOUR ADENTURES which shows traders such as BioLite and Enerdrive using the phrase to promote their battery and/or solar products. The Opponent also exhibits a Google search for the words POWER YOUR NEXT ADVENTURE which shows traders including REDARC, KickAss Products and EJERRY using this phrase to promote their battery and/or solar products.
2. In response the Applicant submits providing definitions of single words which make up the Trade Mark does not establish that the Trade Mark when properly considered in its entirety has any ordinary signification in relation to the Applicant's Goods and Services. Further, the Applicant submits that the Trade Mark is not the "natural and ordinary way" to describe or refer to the Applicant's Goods and Services, and therefore other traders with proper motives will not desire to use the Trade Mark in relation to the same or similar goods and services.
3. The Trade Mark is composed of familiar, English language words which both individually and as a whole, are readily understood. In the context of the Applicant's Goods the term POWERING YOUR ADVENTURES has the ordinary signification of providing energy or power to support activities described as adventures and to ordinary consumers would directly relate to the Goods. It follows that other traders would legitimately desire to use the Trade Mark or a similar trade mark as a reference to the character or quality of energy or power related goods. As evidenced by traders such as BioLite and Enerdrive using the phrase to promote their battery and/or solar products.
4. However, when the Trade Mark is used in connection with the Applicant's Services the ordinary signification of the Trade Mark suggests outcomes rather than describing the nature or characteristics of services. Moreover, the evidence filed in this matter does not support the view that POWERING YOUR ADENTURES is a term that other traders are legitimately likely to wish to use in relation to their services. Therefore, the likelihood of other traders desiring to use the Trade Mark in relation to the Applicant's Services is remote.
5. On balance, I find that the Trade Mark is to some extent, but not sufficiently, inherently adapted to distinguish the Applicant's Goods under 41(4)(a). I am satisfied that the Trade Mark is inherently capable of distinguishing the Applicant's Services from those of other traders.
6. Therefore, it is appropriate under s 41(4)(b) to consider the Applicant's evidence of use, intended use and any other relevant circumstances in relation to the Applicant's Goods.

Evidence of use, intended use or other circumstances

1. The Applicant's evidence shows that the Applicant has established continuous use of the Trade Mark from 3 December 2020 to June 2024, being 3.5 years, in respect of a range of power and energy products including control and monitoring software and equipment, batteries, inverters, chargers, recreational vehicle accessories and spare parts.
2. Since 2021 the extent of use of the Trade Mark is demonstrated by its substantial sales revenue for the years 2021 to 2023 and advertising expenditure for the years 2021 to part of 2024.[7] While the figures provided are given in relation to the Applicant's Goods and Services, the evidence from Applicant's website http://teambmpro.com ('Applicant's Website') shows that the Applicant is a goods based manufacturing company focused on physical products, with services forming an ancillary component, such as its position as an Original Equipment Manufacturer partner supplying companies such as Jayco, JB Caravans and Thor Motor Coach with components, software or systems that are integrated into their branded products. In 2024 the Applicant's Website featured the Trade Mark on its 'Our Partners' page and I have reproduced an image of the Trade Mark appearing in the banner below[8]:

1. The Applicant's Website also features the Trade Mark in its Blog archives and provides details of its nationwide stockist network ('network') including premium dealers, dealers, retailers and installers.[9]
2. In 2023 the Applicant provided dealers in its network with training presentations featuring the Trade Mark.[10] The Applicant also provides its network with merchandise display stands which feature the Trade Mark above a range of the Applicant's Goods. Exhibits in Bayliss include an image of a display stand set up in Jayco Albury Wodonga in 2021.[11] I have reproduced a copy of the display stand at Jayco below:

1. The Applicant's network also promotes the Trade Mark in relation to the Applicant's Goods by perimeter advertising and in blogs. In 2021 Ian Grants Caravans in Victoria promoted the Applicant's Goods under the Trade Mark by perimeter advertising which included fence signage and an exhibition trailer.[12] I have reproduced an image of the perimeter advertising below:

1. In September 2021 Takalvans a campervan and caravan dealer, featured the Trade Mark in an article on its website blog page which discussed the Applicant's Goods.[13]
2. The Applicant also promotes the Trade Mark in brochures it uses to promote the Applicant's Goods dated from 2020 to 2022. These brochures were distributed through the Applicant's Website and to its customers throughout Australia.[14]
3. In addition to the Applicant's Website the Applicant also promotes the Trade Mark in relation to the Applicant's Goods on its Facebook, LinkedIn and YouTube accounts, making regular posts featuring the Trade Mark throughout 2020 to 2024.[15]
4. On the road the Applicant promotes the Trade Mark on its business vehicles and exhibition trailers.[16] The Applicant also attends trade shows in Australia each year and has exhibited at the following Industry Trade Shows:
   • 2020 Victorian Caravan, Camping and Touring Supershow in Melbourne.[17]
   • Caravan Industry Association of Australia National Conference in 2021 including the sponsorship of its Future Leaders Forum.[18]
   • Let's Go Queensland Caravan & Camping Super Show in 2023.[19]
   • Caravan Industry National Conference in 2023.[20]
   • Melbourne Showgrounds 2024. [21]

I have reproduced an image of its exhibition stall at the Melbourne Showgrounds in 2024:[22]

1. Further, the Applicant affixes the Trade Mark on the product packaging of the Applicant's Goods and I have reproduced an image of a pallet of the Applicant's Goods below:[23]

1. The evidence of use of the Trade Mark by the Applicant set out in Bayliss in respect of the Applicant's Goods since December 2020 is significant. The Applicant's sales and advertising expenditure is high, and its sales are supported by its extensive network and partnerships. The Applicant's Trade Mark appears in training materials provided to members of its network as well as on the merchandise display stands for use in their shop fronts. In some cases, members of the Applicant's network also promote the Trade Mark on perimeter advertising and in their publications. The Applicant's campaigns at industry trade events draw the consumer to its booth by clearly displaying the Trade Mark on its site tent, sail flags, and display stands. Furthermore, the Applicant has promoted the Trade Mark extensively on its website and through regular posts on its digital media accounts, as well as on product packaging and brochures.
2. In considering use of the Trade Mark, I note the Opponent's submissions that the evidence of use does not show the Trade Mark being sufficiently used on its own. In particular, the Opponent argues that the Trade Mark has been consistently used together with the Applicant's BMPRO trade mark, such that consumers would not associate the Applicant's Goods under the Trade Mark by itself with the Applicant, but only the goods under the Trade Mark when it is used together with the BMPRO trade mark.
3. I do not agree with the Opponent. While it is apparent that the Applicant's house brand BMPRO features in the promotion of the Applicant's Goods, it is a common commercial practice to have multiple levels of branding in relation to goods. Under ss 7 and 17 the branding function can be carried out in different places on advertising or packaging with different degrees of strength or subtlety. In this case, the trade mark POWERING YOUR ADVENTURES consists of words used to give information about the trade connection which have been, to a significant extent, drawn to the attention of consumers. I consider that any association, in the public mind, between the Applicant's Goods and the Applicant, would be derived from use of the trade mark POWERING YOUR ADVENTURES.
4. I am satisfied that as a result of the extent of use of the Trade Mark by the Applicant before and after the Relevant Date in respect of the Applicant's Goods, and because of the specialised marketplace in which the Applicant operates, the Trade Mark does in fact or will distinguish the Applicant's Goods by indicating a connection in the course of trade with the Applicant.

(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 not established its ground of opposition in relation to the Application. Accordingly, trade mark number 2350225 may proceed to registration one month from the date of this decision, with the following endorsement:

Evidence and/or other circumstances provided under subsection 41(4).

1. If the Registrar is served with a notice of appeal, I direct that the disposition of the Application should be in accordance with the Court's order or direction.

1. Both parties sought an award of costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the Opponent under s 221 in line with 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] The ownership details were amended by this Office on 23 February 2026, on evidence of a recorded change of name with the Australian Securities & Investment Commission ('ASIC') on 3 December 2020.

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

[4] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

[5] [1964] HCA 55, [5].

[6] [2014] HCA 48, [71], (French CJ, Hayne, Crennan and Kiefel JJ).

[7] Bayliss, Confidential Exhibits LB-19 and LB-20.

[15] Bayliss, Exhibits LB-7, LB-8, LB-9, LB-10, LB-11 and LB-12.