Don’t try to
hide the truth
in a case of
‘bad faith’
Inspire March 2022
The Federal Court has
allowed an appeal in
Enagic v Horizons 1
on grounds including
s 62A of the Trade
Marks Act (‘Act’) that
the application subject
to the opposition was
filed in ‘bad faith’. The
determination of this
ground heavily turned
not only on the evidence
that was submitted,
but also evidence that
was not submitted
or was redacted.
This case not only highlights the
highly evidence-based nature of
the s 62A opposition ground, but
also the need to take care when
redacting evidence, when choosing
witnesses, and with the drafting of
specifications of goods and services.
The appeal related to Enagic’s
opposition to Horizons’
application 1798917 for KANGEN
in class 35 in Australia.
Enagic and Horizons are direct
competitors that have a complex
history of disputes. Enagic was
incorporated in Japan in 1974 and
has an affiliated company in Australia.
6 1
Enagic Co Ltd v Horizons (Asia) Pty Ltd (No 3) [2021] 1512