This matter concerned an application for declaration of invalidity filed by Tea Living, Inc. in respect of Chloe Taylor’s registered trade mark No. 987329 TEA & device in relation to “articles of clothing” in class 25.
By way of background, Ms Taylor conceived and developed the brand TEA & device in August 2013 for her final project at University, when she was undertaking a degree in graphic design. The University project was solely in respect of t-shirts. On 4 November 2013, she applied to register the relevant mark for “articles of clothing” in class 25.
Tea Living relied on three grounds of invalidity as follows:
Ground 1: Relevant mark “used” or “proposed to be used” for all of the goods - Tea Living claimed that Ms Taylor’s registration was neither used or proposed to be used in respect of all the goods covered by her registration, except designer t-shirts and designer singlets for adults.
On this point, the Assistant Commissioner noted that Ms Taylor’s evidence of use showed the relevant mark being used in connection with children’s hats, scarves and a vest, along with adult t-shirts. Of notable interest, while the evidence appeared to date from around April to June 2016, the Assistant Commissioner pointed out that this evidence assisted in gauging Ms Taylor’s intention at the time she applied to register the TEA & device trade mark (being the intention to use the mark in relation to “clothing”, without limitation).
Further, the Assistant Commissioner noted that the invalidity action was not Tea Living’s only opportunity to challenge the scope of the specification for Ms Taylor’s registered mark, as Tea Living could apply for a partial revocation.
This ground of invalidity was unsuccessful.
Ground 2: Legitimate claim to proprietorship - Tea Living claimed that Ms Taylor had no legitimate claim to ownership of the mark TEA & device for “articles of clothing” without limitation.
The Assistant Commissioner noted that one of the requirements for a legitimate claim to ownership is that the applicant for registration is using, or has a sufficiently definite intention to use, the mark. Given her finding in relation to ground 1, the Assistant Commissioner dismissed the second ground of invalidity.
Ground 3: Bad faith - the Assistant Commissioner noted that there was no evidence demonstrating that Ms Taylor was seeking registration of a broad specification for some dishonest or unfair purpose. This ground of invalidity was unsuccessful.
Registration No. 987329 is to remain on the Register.
To view the Office decision, click here.