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.

The question is whether the conduct falls short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in the particular area. It is whether the knowledge of the applicant was such that the decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.[34]

At the time of filing its application, the Applicant was aware that:

• the Opponent represented the Estate of Bon Scott;

• the Opponent had not authorised the Applicant or any of its affiliated companies or individuals to use any assets or indicia of the Bon Scott Estate;

• the Opponent had not endorsed any reference to or association with Bon Scott by the Applicant; and

• the Opponent had not granted permission to the Applicant to register a trade mark which includes the word BON, in clear reference to Bon Scott.

1. In its submissions, the Opponent contends that the Applicant ought to have known it should not apply to register the Trade Mark given that the Opponent expressly informed the Applicant it did not consent to the documentary. Also, the Opponent argues the Applicant has engaged in various acts of bad faith conduct as outlined above at [52] and has adopted the distinctive element 'BON' from the Opponent's Mark to suggest that the Applicant's Goods and Services have the same trade source as those of the Opponent or that there is otherwise an association or connection with the Opponent. In oral submissions, the Opponent also argued that the Applicant's conduct in registering various business names based on the names of bands that Bon Scott performed in before AC/DC demonstrates a pattern of bad faith behaviour.
   1. There is nothing inherently illegal in producing an unauthorised documentary (although there are legal considerations such as defamation law and the need for appropriate consent to copyright materials). Accordingly, I do not think that the fact the Applicant knew that the Opponent did not consent to the documentary amounts to bad faith. Moreover, I have already found that the inclusion of the element BON in the Trade Mark does not itself suggest an association with Bon Scott or the Opponent.
   2. In terms of the press releases, music, videos and other materials available on the Applicant's Website, this ground fails for similar reasons to the s 42(b) ground. Whilst the conduct of the Applicant in publishing these materials on the Applicant's Website may fall short of acceptable commercial standards, I consider that there is an insufficient nexus between the filing of the Application and use of the Trade Mark, and the conduct which the Opponent claims is in bad faith. In my view, none of the conduct complained of can be tied directly to use of the Trade Mark itself. The only connection is that the misrepresentations and potentially infringing copyright materials appear on the Applicant's Website. This conduct would be the same if the materials appeared on another website and hence the use of the Trade Mark is not integral to the Applicant's conduct. All of the conduct involves the use of other marks such as Blue Pie, Bon Scott or the name of Bon Scott's earlier bands. In my view, the publication of the misrepresentations and materials for which the Applicant allegedly does not have copyright permission on the Applicant's Website is not a sufficiently direct use of the Trade Mark in connection with the bad faith conduct.
   3. I am not satisfied that the Application was made in bad faith. The s 62A ground of opposition is unsuccessful.

1. Section 55 of the Act provides:

(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.

Note: For limitations see section 6.

1. The Opponent has not established any grounds of opposition. The Trade Mark may accordingly proceed to registration one month from the date of this decision. If the Registrar has been served with notice of appeal before that time, I direct that registration of the Trade Mark shall not occur until the appeal has been decided or discontinued.
2. The Applicant requested an award of costs in its Notice of Intention to Defend. As costs generally follow the event, I award costs against the Opponent under s 221 in accordance with Schedule 8 of the Regulations.

Class 16: Printed concert programs, printed souvenir items being postcards, posters and decalcomania; sheet music; cardboard and goods made from cardboard, not included in other classes; printed publications; books; pamphlets; magazines; plastic material for packaging (not included in other classes); cards; greeting cards; stickers; transfers; address books; and note books

Class 41: Production, presentation and distribution of musical and related entertainment through live performances, stage events, television, radio, electronic distribution and any other media, production of films and television programmes; fan club services (entertainment)

Class 9: Video and audio tapes, compact discs, sound and/or video recordings, video discs, and all other devices and formats in this class for the reproduction of sound and/or visual images

Class 35: Retail and wholesale services in this class relating to entertainment, media and communications industries being the retailing and wholesaling of musical instruments, sheet music, music software, clothing, footwear, headgear, audio visual products, multimedia products, pre-recorded discs, compact discs, computer games, interactive products, games, toys, DVD's, books, posters, printed matter; promotional services relating to entertainment, media and communications services being concert promotions (for others), promotional management of celebrities, promotion and sale of naming and product supply rights (for others) and online promotion of films, television and radio programs and audio visual entertainment; distribution of samples

Class 41: Production of video and audio tapes, compact discs and other audio and audiovisual devices; publication of books and printed material; electronic publication services being: the provision of online electronic publications (not downloadable) about entertainment, electronic publication of entertainment news and topics, the production of webcasts, publication of multimedia material online, and weblog (blog) services (online publication of journals or diaries); music publishing and distribution (not being transport) services including the distribution (other than transportation) of film, television, radio, sound recordings and audio visual programs

[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