Section 62A

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. For this, I must determine whether, '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'.[8]
2. 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.[9]

1. The amended SGP particularises the ground of opposition under s 62A as follows:

The applicant filed 15 Australian trade mark applications between 24th January 2024 and 23rd September 2024. The applications were made across 9 classes: 8, 9, 10, 18, 20, 21, 22, 26, 28. The range of goods varies across pet clippers, rigging ropes, electronic locks, bath toys and microphones. It is fanciful to believe that the applicant filed the application with a legitimate commercial motive. Accordingly, the application was filed in bad faith.

1. The Opponent's evidence does nothing more than repeat the particular above. Chen otherwise provides nothing to corroborate the circumstances relied on in respect of this ground of opposition.
2. There is no evidence filed in these proceedings regarding the applicant's awareness of the Opponent or its use of the Trade Mark when filing the application to register the Trade Mark. Furthermore, there is little, if any, evidence put on by the Opponent about the applicant, its industrial and capital capacities, interests, goals and most vitally, any intention behind the filing of the application to register the Trade Mark or any of the other trade marks mentioned in evidence. The Opponent's evidence does not elaborate on the circumstances around any application for registration of a trade mark in Australia or overseas made by the applicant, such as a list of the trade marks, the classes of goods or perhaps corroborating evidence of third-party proprietorship of such trade marks. In summary, the material does not rise to the level of establishing a pattern of conduct. Whilst I note that s 58 has been partially established, there is nothing which would establish relevant knowledge, for example of the applicant, its activities and its trade mark. Ultimately, the submissions and evidence in respect of this ground rise no higher than speculative allegations without sufficient corroboration in evidence.
3. Accordingly, the ground of opposition under s 62A fails.

1. Section 55 relevantly 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. I am satisfied that a ground of opposition has been established under s 58 in respect of some of the Applicant's Goods.
2. I contacted the Applicant by letter and noted that I would refuse the Application unless they agreed to the following amendments (strikethrough indicating deletion):

electric actuators; projection apparatus with artificial intelligence; microscope video processors; camera tripods; linear actuators, electric; virtual reality software for cinematography; gimbals for digital cameras; minicomputers; slide projection apparatus; multimedia apparatus and instruments; devices for the projection of virtual keyboards; photograph projection apparatus; holographic projection apparatus; movie projectors; video projectors; motion picture projectors; projectors for the entertainment industry; photographic projectors; photography projectors; slide projectors; digital projectors; home theatre projectors; home theater projectors; LCD projectors; remote controls for projectors; cine projectors; cinematographic projectors; overhead projectors; home cinema projectors; profile projectors; batteries for projectors; liquid crystal display projectors; camera spools; projectors; picture projectors; multimedia projectors; planetarium projectors; portable displays; portable monitors; portable 3D scanners; portable fax machines; portable radios; portable MP3 players; portable flash memory devices; USB hardware; USB adapters; USB flash drives; USB cards; USB sticks; universal serial bus [USB] flash drives; USB card readers; USB port cards; 3D holographic projectors; 3D spectacles; 3D holographic displays; 3D scanners; alarms; alarm systems; alarm installations; alarm monitoring systems; elevator alarm systems; whistle alarms; door alarms; gas alarms; bells [warning devices]; radio apparatus incorporating alarm clocks; smartwatches; smartwatches [data processing apparatus]; smartglasses; smartwatches (data processing apparatus); portable speakers; speakers, portable; portable audio players; sound projectors; sound alarms; cabinets for loudspeakers; loudspeaker cabinets; cabinets adapted to hold audiovisual instruments; loudspeakers; speaker systems consisting of loudspeakers and cabinets for use with loudspeakers; loudspeaker housings; loudspeakers with built-in amplifiers; loudspeaker units; cabinets adapted to hold navigation instruments; cabinets adapted to hold weighing instruments; electrical switch cabinets; cabinets adapted to hold photographic instruments; cabinets adapted to hold navigation apparatus; audio speaker enclosures; cabinets adapted to hold surveying instruments; sound recording equipment; soundboards; sound boards; electronic sound pickups for guitars and basses; portable vibration speakers; musical instrument amplifiers; biological safety cabinets for laboratory use; audio and video mixing desks; soundbars; accessories for karaoke machines, namely, microphones, amplifiers and speakers; wearable audio equipment; audio recorders; acoustic membranes used in sound recording or reproducing apparatus; sound amplifiers; sound processors; sound samplers; sound effects pedals for musical instruments; computer mouse and trackballs; mouse mats; computer mouse mats; wrist rests for computer mouse users; smartwatches that communicate data to PDAs; tablet monitors; digital tablets; electronic tablets; covers for tablet computers; graphics tablets; stands adapted for tablet PCs; protective covers for tablet computers; display screen filters adapted for use with tablet computers; graphic tablets; electronic pocket calculators; downloadable emoticons for tablets; pocket calculators; pocket computers for note-taking; digitizing tablets; computer touchscreens; bags for tablets; touch pads; ear pads for earphones; mouse pads; knee pads for workers; digitiser pads; projection keyboards; mouse [computer peripheral]; keyboard video mouse (KVM) switches; computer mouse pads; touch pads for computers; keys for computer keyboards; mechanical keyboard switches; keyboards for cell phones; keyboard cases for smartphones; computer keyboard covers; keyboards for mobile telephones; keyboards for smartphones; wrist rests for use with computer keyboards; electronic keys; wrist rest pads for keyboards; computer touch screens; computer joysticks; wireless computer mouses; electronic keys for automobiles; joysticks for use with computers; mathematical instruments; computer styluses; stylus pens for touch screen devices; stylus pens for touch screens; chord keyboards; multifunction computer keyboards; cabinets adapted to hold laptops; portable computers; tablet PCs; software for tablet computers; downloadable computer software for tablets; mobile computers; palmtop computers; gaming computers; personal computers; computers and computer peripheral devices; software and applications for computers and mobile devices; micro-computers; computer mouse; computer mouses; computer mice; mousepads; computer keypads; stick computers; computer keyboards; keyboards for computers; computer screens; touchpads for computers; laptop computers; gaming laptops; notebook computers; computers; wearable laptops; laptop covers; desktop computers; tablet computers; covers for laptop computers; wearable computers; laptop docking stations; wireless portable printers for use with laptops and mobile devices; computer housings; power cables for projectors; USB cables; USB cables for mobile phones; electrical cables; cables for transmitting and receiving cable television signals; telecommunications cables; electric cables; coaxial cables; cable sockets; high-definition television cables; earth cables; optical fiber cables; fiber interconnection cable; cable connectors; cables for the transmission of sounds and images; ethernet cables; jack cables; electronic cables; data cables; feeder cables; USB cables for cell phones; electrical cable connectors; electric cables for use with telecommunication apparatus; telegraph wires; charging cables for electric vehicles; charging cables for electric cars; electric cable connectors; telephone wires; jump cables; high-definition multimedia interface cables for projectors; universal serial bus [USB] cables; electric wires for communication equipment; electrical cords; USB cables for cellular telephones; micro USB cables; electric adapter cables for headsets; telegraphs; joint boxes for housing cable joints; cable jump leads; power wires; materials for electricity mains [wires, cables]; telecommunications networks; coaxial relays; fibre optic connectors for telecommunications apparatus; telecommunications multiplexers; gender changers [cable adapters] for cell phones; loudspeaker cases; cases for loudspeakers; audio speaker cases; protective cases for tablet computers; laptop cases; cases for laptop computers; cases for laptops; cases for telephones; cases for data storage devices; cell phone cases; camera cases; cases for smartphones; lens cases; DVD cases; cases for tablet computers; cases for mobile telephones; cases for electronic devices; battery cases; cases for personal digital assistants; cases for eyeglasses; camera lens cases; cases for pince-nez; cases for photographic cameras; protective cases for e-book readers; cases for camcorders; cell phone cases and covers; CD cases; carrying cases for pagers; cases for binoculars; cases adapted for notebook computers; cases adapted for cell phones; cases and covers for cell phones; cases especially made for photographic apparatus and instruments; cases for children's spectacles; mobile telephone cases and covers; fitted cases for contact lenses; cellular phone cases and covers; cases adapted for netbook computers; cases for cellular telephones; cases and covers for electronic devices; sunglass cases

1. The Applicant informed me in writing that they had agreed to these amendments. Accordingly, the Trade Mark may proceed to registration subject to the amendments, not earlier than one month from the date of this decision.
2. If the Registrar is served with a 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 and the disposition of the application should otherwise be in accordance with the Court's order or direction.
3. Both parties requested costs. Whilst the usual course is for costs to follow the event, noting that there is a measure of success for both parties, I decline to make an award of costs.

Class 9: electric actuators; projection apparatus with artificial intelligence; microscope video processors; camera tripods; linear actuators, electric; virtual reality software for cinematography; gimbals for digital cameras; minicomputers; slide projection apparatus; multimedia apparatus and instruments; devices for the projection of virtual keyboards; photograph projection apparatus; holographic projection apparatus; movie projectors; video projectors; motion picture projectors; projectors for the entertainment industry; photographic projectors; photography projectors; slide projectors; digital projectors; home theatre projectors; home theater projectors; LCD projectors; remote controls for projectors; cine projectors; cinematographic projectors; overhead projectors; home cinema projectors; profile projectors; batteries for projectors; liquid crystal display projectors; camera spools; projectors; picture projectors; multimedia projectors; planetarium projectors; portable displays; portable monitors; portable 3D scanners; portable fax machines; portable radios; portable MP3 players; portable flash memory devices; USB hardware; USB adapters; USB flash drives; USB cards; USB sticks; universal serial bus [USB] flash drives; USB card readers; USB port cards; 3D holographic projectors; 3D spectacles; 3D holographic displays; 3D scanners; alarms; alarm systems; alarm installations; alarm monitoring systems; elevator alarm systems; whistle alarms; door alarms; gas alarms; bells [warning devices]; radio apparatus incorporating alarm clocks; smartwatches; smartwatches [data processing apparatus]; smartglasses; smartwatches (data processing apparatus); portable speakers; speakers, portable; portable audio players; sound projectors; sound alarms; cabinets for loudspeakers; loudspeaker cabinets; cabinets adapted to hold audiovisual instruments; loudspeakers; speaker systems consisting of loudspeakers and cabinets for use with loudspeakers; loudspeaker housings; loudspeakers with built-in amplifiers; loudspeaker units; cabinets adapted to hold navigation instruments; cabinets adapted to hold weighing instruments; electrical switch cabinets; cabinets adapted to hold photographic instruments; cabinets adapted to hold navigation apparatus; audio speaker enclosures; cabinets adapted to hold surveying instruments; sound recording equipment; soundboards; sound boards; electronic sound pickups for guitars and basses; portable vibration speakers; musical instrument amplifiers; biological safety cabinets for laboratory use; audio and video mixing desks; soundbars; accessories for karaoke machines, namely, microphones, amplifiers and speakers; wearable audio equipment; audio recorders; acoustic membranes used in sound recording or reproducing apparatus; sound amplifiers; sound processors; sound samplers; sound effects pedals for musical instruments; computer mouse and trackballs; mouse mats; computer mouse mats; wrist rests for computer mouse users; smartwatches that communicate data to PDAs; tablet monitors; digital tablets; electronic tablets; covers for tablet computers; graphics tablets; stands adapted for tablet PCs; protective covers for tablet computers; display screen filters adapted for use with tablet computers; graphic tablets; electronic pocket calculators; downloadable emoticons for tablets; pocket calculators; pocket computers for note-taking; digitizing tablets; computer touchscreens; bags for tablets; touch pads; ear pads for earphones; mouse pads; knee pads for workers; digitiser pads; projection keyboards; mouse [computer peripheral]; keyboard video mouse (KVM) switches; computer mouse pads; touch pads for computers; keys for computer keyboards; mechanical keyboard switches; keyboards for cell phones; keyboard cases for smartphones; computer keyboard covers; keyboards for mobile telephones; keyboards for smartphones; wrist rests for use with computer keyboards; electronic keys; wrist rest pads for keyboards; computer touch screens; computer joysticks; wireless computer mouses; electronic keys for automobiles; joysticks for use with computers; mathematical instruments; computer styluses; stylus pens for touch screen devices; stylus pens for touch screens; chord keyboards; multifunction computer keyboards; cabinets adapted to hold laptops; portable computers; tablet PCs; software for tablet computers; downloadable computer software for tablets; mobile computers; palmtop computers; gaming computers; personal computers; computers and computer peripheral devices; software and applications for computers and mobile devices; micro-computers; computer mouse; computer mouses; computer mice; mousepads; computer keypads; stick computers; computer keyboards; keyboards for computers; computer screens; touchpads for computers; laptop computers; gaming laptops; notebook computers; computers; wearable laptops; laptop covers; desktop computers; tablet computers; covers for laptop computers; wearable computers; laptop docking stations; wireless portable printers for use with laptops and mobile devices; computer housings; power cables for projectors; USB cables; USB cables for mobile phones; electrical cables; cables for transmitting and receiving cable television signals; telecommunications cables; electric cables; coaxial cables; cable sockets; high-definition television cables; earth cables; optical fiber cables; fiber interconnection cable; cable connectors; cables for the transmission of sounds and images; ethernet cables; jack cables; electronic cables; data cables; feeder cables; USB cables for cell phones; electrical cable connectors; electric cables for use with telecommunication apparatus; telegraph wires; charging cables for electric vehicles; charging cables for electric cars; electric cable connectors; telephone wires; jump cables; high-definition multimedia interface cables for projectors; universal serial bus [USB] cables; electric wires for communication equipment; electrical cords; USB cables for cellular telephones; micro USB cables; electric adapter cables for headsets; telegraphs; joint boxes for housing cable joints; cable jump leads; power wires; materials for electricity mains [wires, cables]; telecommunications networks; coaxial relays; fibre optic connectors for telecommunications apparatus; telecommunications multiplexers; gender changers [cable adapters] for cell phones; loudspeaker cases; cases for loudspeakers; audio speaker cases; protective cases for tablet computers; laptop cases; cases for laptop computers; cases for laptops; cases for telephones; cases for data storage devices; cell phone cases; camera cases; cases for smartphones; lens cases; DVD cases; cases for tablet computers; cases for mobile telephones; cases for electronic devices; battery cases; cases for personal digital assistants; cases for eyeglasses; camera lens cases; cases for pince-nez; cases for photographic cameras; protective cases for e-book readers; cases for camcorders; cell phone cases and covers; CD cases; carrying cases for pagers; cases for binoculars; cases adapted for notebook computers; cases adapted for cell phones; cases and covers for cell phones; cases especially made for photographic apparatus and instruments; cases for children's spectacles; mobile telephone cases and covers; fitted cases for contact lenses; cellular phone cases and covers; cases adapted for netbook computers; cases for cellular telephones; cases and covers for electronic devices; sunglass cases

[1] Unless specified otherwise, a reference in these reasons to a section is a reference to such in the Trade Marks Act 1995 (Cth) and a reference to a regulation is a reference to such in the Trade Marks Regulations 1995 (Cth) ('Regulations').

[2] I note that the specification was later amended to remove class 18 and a divisional application was filed.

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

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

[6] Aston v Harlee Manufacturing Co [1960] HCA 47 (Fullagar J).

[7] See for example, Energy Beverages LLC v Kangaroo Mother Australia Pty Ltd [2023] FCA 999 (O'Callaghan J).

[8] Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81, [167] (Dodds-Streeton J).

[9] [2013] FCA 478, [62].