The Applicant's conduct in filing the application would be regarded as bad faith by persons adopting proper standards.

The Opponent argues that the Applicant was aware of the Opponent and its claim to prior rights in the mark TMRW. Further, the Applicant has downplayed the links between golf and entertainment so as to argue that there is no likelihood of confusion but adopts a contrary approach in its opposition to the Opponent's Logo. In addition, the Opponent says that the Applicant's bad faith conduct is evident in that it has represented its application 2335613 TMRW SPORTS as registered in its opposition to the Opponent's Logo when the application is still pending. The Opponent cites Re Burcombe & Coy Ltd's Application[34] in support of this contention.
The Applicant submits that mere knowledge of an opponent and/or its trade mark does not equate to bad faith.[35] Moreover, there is no evidence that the Applicant was aware of the Opponent when it adopted the Trade Mark. To the contrary, Murvin declares that the Applicant did not know of the Opponent when it adopted the Trade Mark but became aware of the Opponent two years later when it received a citation of the Opponent's Mark to its application 2335613. In relation to the claim that the Applicant has been underhanded in its opposition to 2461939 or in prosecuting its application 2335613 TMRW SPORTS, the Applicant says it has not relied on the Application in the opposition to 2461939 and disputes that any statement made in those proceedings is relevant to the present case given the different marks and different goods/services covered in those proceedings.

(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.

I have found that the Opponent has not established any of the grounds of opposition nominated in its SGP. Accordingly, I direct that the Trade Mark can proceed to registration under application 2397016 not less than one month from the date of this decision.
If the Registrar is served with a notice of appeal, I direct that registration of the Trade Mark shall not occur 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.
Both parties sought an award of costs. As costs generally follow the event, I award costs against the Opponent under s 221 in the amounts set out in Schedule 8 of the Regulations.

Class 9: Audio compact discs; Audio recordings; Compact discs containing recorded sound; Record discs bearing sound recordings; Recorded discs bearing sound; Records (sound recordings); Records bearing sound recordings; Sound recordings; Sound recordings in the form of records; Sound recordings on record; Sound records; Sound records in the form of discs; Cases adapted for music recordings; Digital music (downloadable) from the Internet; Digital music (downloadable) provided from MP3 web sites on the internet; Downloadable music files; Music recordings; Musical recordings in the form of discs; Pre-recorded music videos; Records bearing entertainment material; Sound recordings in the form of phonograph records; Vinyl pressed records; Vinyl records; Downloadable ring tones for mobile phones; Phonograph records

Class 16: Advertising material being printed matter; Concert programs being printed matter; Entertainment guides (printed matter); Musical works in the of printed matter; Printed artwork; Printed music; Printed musical publications; Printed sheet music; Sleeves bearing printed matter for use as a cover for sound recordings; Protective covers (sleeves) of card for sound recordings; Protective covers (sleeves) of paper for sound recordings; Protective covers (sleeves) of plastics for sound recordings; Record album covers of card; Record album covers of cardboard; Record album covers of paper; Record sleeves of card; Record sleeves of paper; Sleeves for record albums; Storage sleeves of card for compact disks; Storage sleeves of paper for compact disks; Posters; Flyers; Music books; Music magazines; Albums

Class 35: Agents' services (business management of actors, artists, authors, performing artists, photographers or writers); Advice relating to business management; Advisory services relating to business management; Business management; Business management of performing artists; Management advice; Management assistance in business affairs; Management of business (for others); Personnel management; Promotional management of celebrities; Provision of business management assistance; Sponsorship (promotion and marketing services); Concert promotions (for others); Promotion (advertising) of concerts; Promotional services

Class 41: Distribution (other than transportation) of audio recordings; Distribution (other than transportation) of sound recordings; Sound recording services; Arranging of music performances; Arranging of music shows; Arranging of musical entertainment; Live music services; Music performance services; Music publishing services; Music recording studio services; Musical entertainment services; Musical performance services; Musical performances; Organisation and conducting of dance, music and other entertainment festivals; Organisation of musical events; Production of music shows; Providing digital music (not downloadable) from the Internet; Recording of music; Advisory services relating to music entertainment; Arranging of music entertainment; Booking of music entertainment; Club music entertainment services; Music Entertainment; Live music entertainment; Live music entertainment production services; Management of music entertainment events; Management of music entertainment services; Night club services (Entertainment); Organisation of music entertainment events; Organising events for music entertainment purposes; Organising of music entertainment; Organising of music entertainment and social events; Production of live music entertainment; Provision of live music entertainment; Provision of music recording studio facilities; Music recording studio services; Live music show production services; Production of music audio and/or video recordings, other than advertising; Production of musical recordings, other than advertising; Production of musical recordings, other than advertising; Music entertainment information; Music Fan club services (entertainment); Organisation of promotions (music entertainment events); Providing information, including online, about music entertainment activities; Ticket agency services (music entertainment); Publication of music; Arranging and conducting of concerts; Arranging of concerts; Concert services; Management of concerts; Music concert services; Musical concert services; Organisation of live shows; Presentation of live performances; Production of live performances; Providing online electronic publications for musical entertainment (not downloadable); Music festival services; Managing, organising, arranging, producing, publishing and booking of music, musicians, DJs, live music, musical entertainment at sports events including golf, cricket, tennis, surfing, basketball, soccer, Australian football, rugby, rugby league, horse racing, motor car racing and motorcycle racing

Class 45: Licensing services relating to music publishing; Music publisher services (licensing of music); Exploitation of intellectual property rights; Licensing of intellectual property; Exploitation of copyrights; Licensing services

[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 Application was filed in the name of Nexgen Sports Group Inc which changed its name on 9 November 2023.

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

[4] Telstra Corporation Limited v Phone Directories Company Ltd [2015] FCAFC 156, [132]-[133] (Besanko, Jagot and Edelman JJ).

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

Marks Regulations 1995

TMRW Music Pty Ltd v TMRW Sports Inc [2025] ATMO 228 (5 November 2025)

TMRW Music Pty Ltd v TMRW Sports Inc [2025] ATMO 228

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)

TMRW Music Pty Ltd v TMRW Sports Inc [2025] ATMO 228 (5 November 2025)