Re: Opposition by Wuhan Zhongsenjiacheng Technology Co Ltd to registration of

trade mark application number 2467441 (class 25) - Unnivoll - in the name of qiang li

2025 ATMO 254

Trade Marks Act 1995 (Cth) - opposition under section 52 - ss 43, 58 & 62A nominated- s 58 considered and established for some goods and s 62A established for remaining goods - trade mark refused registration

1. This is a decision on the opposition under s 52 of the Trade Marks Act 1995 (Cth)[1] by Wuhan Zhongsenjiacheng Technology Co Ltd ('Opponent') to registration of the trade mark detailed below in the name of qiang li ('Applicant'):

Specification: Class 25: children's and infants' cloth bibs; cloth bibs for children; cloth bibs; pocket squares of textile; dress handkerchiefs [pocket squares] of textile ('Applicant's Goods')

1. Following the advertisement of acceptance of the Trade Mark for possible registration, the Opponent filed a Notice of Intention to Oppose registration of the Trade Mark on 14 January 2025 and a Statement of Grounds and Particulars ('SGP') on 16 January 2025 (subsequently rectified). The Applicant filed a Notice of Intention to Defend on 9 March 2025.
2. The parties then had an opportunity to file evidence in accordance with the Regulations. The Opponent filed its evidence in support ('EIS') on 4 June 2025 consisting of a declaration of Jie Hu, Chief Executive Officer of the Opponent, made on 30 May 2025 with Exhibits JH01 to JH09 ('Hu'). No other evidence was filed in the proceedings.
3. Once the evidence stage concluded, the parties had the opportunity to request a hearing. Neither party asked to be heard but the Opponent asked for a decision without a hearing. This matter has been allocated to me to determine as a delegate of the Registrar of Trade Marks. I make my decision based on the aforementioned materials.

1. The Opponent's SGP nominates grounds of opposition under ss 43, 58 and 62A.
2. The Opponent bears the onus of proof in an opposition.[2] The relevant standard of proof is the ordinary civil standard based on the balance of probabilities.[3]
3. The date at which the rights of the parties are to be determined is the Relevant Date being both the filing date and priority date of the Application.[4]

1. Hu declares that the Opponent was founded in June 2022 and is a designer and manufacturer of baby products including bibs, burp towels, cot sheets, baby sleeping bags and other cotton products ('Opponent's Goods'). The Opponent's Goods have been sold in many countries including Australia, United States of America ('USA'), Canada, United Kingdom and Germany.
2. Hu attests that the Opponent coined the mark Unnivoll as a combination of 'universal' and 'novel'. According to Hu, the Opponent has used the Trade Mark and the logo form ('Unnivoll Logo', collectively 'Opponent's Marks') since 15 July 2023 when the Opponent's Goods were made available in the USA on Amazon. Hu provides details of the number of sales orders for its Unnivoll products in the USA for 2023 and 2024 noting that sales increased sixfold in 2024. Supporting evidence of these sales from Amazon is exhibited to Hu. The value of the 2024 sales are provided and are reasonably significant.
3. The Opponent's Goods have also been sold on Amazon Australia since at least 12 February 2024. Hu exhibits examples of orders placed on Amazon Australia before the Relevant Date as well as an Amazon report of 'Sales and Traffic by Child Item' showing the number of Australian consumers who viewed the Opponent's different items between 1 July 2023 and 8 May 2025 ('Amazon AU Report').
4. Hu provides the advertising data for promoting its goods on Amazon which appears to be limited to advertising on Amazon USA.
5. Details of the Opponent's registrations for the Unnivoll Logo in the USA, European Community and the United Kingdom are exhibited to Hu.
6. Hu lists 14 other trade marks filed by the Applicant and declares that each of these marks are owned by other individuals or companies overseas as shown in the exhibited extracts from the World Intellectual Property Organization's Global Brand Database.

Section 58

1. Section 58 provides that the registration of a trade mark may be opposed on the ground that the applicant is not the owner of the trade mark.
2. The term 'owner' is not defined in the Act. However, it is well established that the owner of a trade mark is the person who first uses it in Australia, or first files a trade mark for it in Australia, whichever is the earlier.
3. Therefore, to establish this ground of opposition, the Opponent must show that:
   • the Trade Mark is identical or substantially identical to the mark relied on by the Opponent;[5]
   • the Applicant's Goods are the same as the goods for which the Opponent claims to have used its mark;[6] and
   • a person other than the Applicant has an earlier claim to ownership of the Trade Mark based on use of the trade mark(s) relied upon by the Opponent prior to either (a) the application to register the Trade Mark or (b) any use of the Trade Mark by the Applicant in Australia, whichever is the earlier.[7]
4. In its SGP, the Opponent claims to have used the identical mark Unnivoll in Australia since before the Relevant Date for 'baby bibs, not of paper' ('Opponent's Goods'). In support of this claim, the Opponent has provided proof of orders by Australian consumers for cotton bandana bibs from February 2024[8] and the Amazon AU Report demonstrating that Australian consumers viewed the Opponent's offer to sell its goods under the Trade Mark. The mark used by the Opponent is identical to the Trade Mark and the Opponent's Goods are the same as the 'children's and infants' cloth bibs; cloth bibs for children; cloth bibs' claimed in the Application. The Applicant has not filed any evidence that it has used the Trade Mark in Australia. Accordingly, I am satisfied on the evidence that the Applicant is not the owner of the Trade Mark for 'children's and infants' cloth bibs; cloth bibs for children; cloth bibs'.
5. However, the Application also covers 'pocket squares of textile; dress handkerchiefs [pocket squares] of textile' ('Applicant's Other Goods') and I must consider whether the Opponent's bibs are the 'same kind of thing' as the Applicant's Other Goods.

In relation to whether goods are the 'same kind of thing', the delegate in Sola Tube Australia Pty Ltd v Gabriel Andrews[9] stated:The "same kind of thing" in respect of the goods or services of the parties does not equate to goods or services which may be "of the same description" (the latter being a term of art for goods or services which are not the same but which consumers are likely to believe come from the same source). It is a narrower test that applies in the context of a claim to ownership.[10]

1. To be the 'same kind of thing', the goods in relation to which the Trade Mark has been used must be 'essentially the same' as the Applicant's Other Goods, though they may differ in size, shape and name.[11]
2. The goods 'pocket squares of textile; dress handkerchiefs [pocket squares] of textile' are essentially pieces of fabric that are folded and placed in the breast pocket of a suit or blazer as a decorative accessory. They are not intended for practical use in the manner of a handkerchief or bib but are purely ornamental. In my view, the Applicant's Other Goods are not the same kind of thing as the Opponent's Goods.
3. The s 58 ground of opposition is established for 'children's and infants' cloth bibs; cloth bibs for children; cloth bibs' but is unsuccessful with respect to the Applicant's Other Goods. Hence I turn to a consideration of the other nominated grounds of opposition.

Section 62A

1. Pursuant to s 62A, registration of a trade mark may be opposed on the ground that the application was filed in bad faith.
2. The term 'bad faith' is not defined in the Act but The Explanatory Memorandum to the Trade Marks Amendment Bill 2006 provided some non-exhaustive examples of applications made in bad faith which include:
   • persons who have a history of applying for trade marks that are deliberate misspellings of other registered trade marks;
   • persons who identify trade marks used overseas but with no Australian use as yet who then apply to register the trade marks in Australia for the express purpose of selling them to the overseas owners.
3. There have been two Federal Court decisions that substantively considered s 62A: Fry Consulting v Sports Warehouse Inc (No 2)[12] and DC Comics v Cheqout Pty Ltd[13] (DC Comics). The following propositions emerge from each of these two decisions relevant to the present opposition:

(a) Bad faith for the purposes of s 62A must be [as at the priority date] and must relate to the making of the subject of the application:[14]

(b) Section 62A does not require the opponent to establish that the trade mark's use would result in deception or confusion. However, evidence to that effect may be persuasive in considering whether the application to register a mark was in bad faith:[15]

(c) The onus of proving bad faith rests upon the opponent:[16]

(d) All of the circumstances surrounding the application to register the mark are relevant:[17]

(e) The registration of a trade mark is designed to enable bona fide proprietors to protect their proprietary rights without having to prove unfair trading:[18]

(f) While the seriousness of an allegation of bad faith that "impugns the character of an individual or collective character of a business" requires correspondingly cogent evidence, the standard of proof is the balance of probabilities, rather than that of beyond reasonable doubt[19]

(g) Conduct which falls "short of the standards of acceptable commercial behaviour observed by reasonable and experienced men in the particular area" is sufficient. Dishonesty is not required. Bad faith requires both subjective and objective elements; it is a combined test[20]

(h) Subjective naivety does not exclude a determination of bad faith for the purposes of s 62A.

Given the prior use and renown of the Opponent's trademark "Unnivoll" in Australia, the Applicant was fully aware of the Opponent's rights. The Applicant's Trademark is identical to the Opponent's trademark. Indeed, the Applicant likely selected the Trademark for this very reason.

1. Hu expands on the allegation of bad faith listing 14 other trade marks filed by the Applicant owned by other individuals or companies overseas as shown in the exhibited extracts from the World Intellectual Property Organization's Global Brand Database. Hu claims that this demonstrates the bad faith conduct of the Applicant.
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 some goods which overlap with those claimed in the Application. Although the Opponent has not demonstrated prior use of the Trade Mark for the Applicant's Other Goods and I have found that those goods are not the same kind of thing, neither are they completely unrelated to the goods for which the Opponent has used the Trade Mark before the Relevant Date.
3. Further, the Opponent has provided evidence that indicates the Applicant has engaged in a pattern of filing applications for the trade marks of other parties. Despite being challenged in the Opponent's evidence that these applications indicate that the Application has been filed in bad faith, the Applicant has not answered the Opponent's allegations.
4. In my view, the Opponent's evidence of prior use of the identical mark before the Relevant Date for some of the Applicant's Goods and the filing of a number of applications for marks which appear to be owned by third parties (at least overseas), is sufficient to establish a prima facie case of bad faith. 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. 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. I have found that the Opponent has established a ground of opposition under s 58 in relation to 'children's and infants' cloth bibs; cloth bibs for children; cloth bibs' and s 62A for the Applicant's Other Goods. Accordingly, I refuse to register the Trade Mark.
2. If the Registrar is served with a notice of appeal within one month from the date of this decision, I direct that the disposition of the Application be in accordance with the court's direction or order.
3. The Opponent requested an award of costs in its SGP enlivening this issue. As costs generally follow the event, I award costs against the Applicant under s 221 in accordance 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] 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] Carnival Cruise Lines Inc v Sitmar Cruises Limited [1994] FCA 936, [62] (Gummow J).

[6] Re Hicks's Trade Mark [1897] VicLawRp 118; (1897) 22 VLR 636, 640 (Holroyd J).

[7] Settef SpA v Riv-Oland Marble Co (Vic) Pty Ltd (1987) 10 IPR 402, 413 (McGarvie J).

[9] Sola Tube Australia Pty Ltd v Gabriel Andrews [2014] ATMO 103, [14] (Hearing Officer N. Worth).

[10] Colorado Group Limited v Strandbags Group Pty Ltd ('Colorado') [2007] FCAFC 184; (2007) 74 IPR 246; Krone AG v Brook (t/as Cannon Watch Co) [1996] ATMO 16; (1996) 34 IPR 340.

[11] Colorado (n 9), [14] (Kenny J).

[12] [2012] FCA 81 ('Dodds-Streeton J) (Fry Consulting).

[13] [2013] FCA 478 (Bennett J) (DC Comics).

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