#NotThatFamous: When Influencer Buzz Fails the s 60 Test

Anna Paul’s Paullie brand recently learned that viral fame ≠ trade-mark reputation.

When a name like “Paullie” has seven million Instagram followers behind it, you might think trade-mark protection is a lock.

But in Paullie Skin IP Pty Ltd v Amy Ventures Pty Ltd [2025] ATMO 208, the Delegate said “not so fast.”

Influencer Anna Paul launched her cosmetics line Paullie Skin to enormous fanfare. Three days before launch, another business, Amy Ventures, filed PAULLIE for clothing.

Paul’s company opposed under the usual influencer-brand cocktail — s 60 (reputation), s 42(b) (ACL / passing off) and s 62A (bad faith).

But timing was everything: her pre-filing use was only three days old.

⚖️ The Delegate’s Take

• Reputation (s 60) – A few viral posts don’t equal a reputation “among the public generally” as to goods or services. Fame of the person ≠ fame of the mark.

• ACL / Passing off (s 42(b)) – If there’s no s 60 reputation, misleading-or-deceptive conduct falls even shorter.

• Bad Faith (s 62A) – Even if Amy Ventures knew of Paul’s impending skincare line, coincidence plus a similar name wasn’t enough to brand the filing “underhanded”.

Result: no ground made out — Amy Ventures’ PAULLIE can register for apparel.

💡 IP Mojo Take

This one stings for influencers: your personal notoriety doesn’t migrate into trade-mark reputation unless the brand itself is in genuine use for goods or services before the competitor files.

Three days of social-media buzz isn’t “reputation”; it’s anticipation.

The Delegate also drew a neat line from Killer Queen v Taylor — where Freddie Mercury’s legacy mark had a long-standing public association — to Paullie, where launch hype couldn’t bridge the gap.

The lesson here is that, in influencer commerce, “content calendar” and “filing calendar” must align. File before you tease.

🔍 The Broader Theme

We’re seeing a rise in pre-launch collisions: celebrity or influencer products generating hype before clearance.

It’s the mirror image of corporate over-filing — both remind us that reputation is earned, not assumed.

🧠 IP Mojo’s Bottom Line

🩷 Viral reach isn’t legal reach.

⚖️ Reputation is a creature of evidence, not engagement.

🕒 First to prove earlier use beats first to file — but first to file usually beats first to go live without actually using (or being able to prove earlier use of) the mark.

Margaritaville — When Non-Use Bites a Global Brand

In Margaritaville Enterprises, LLC v Australian Bar & Beverage Group Pty. Ltd [2025] ATMO 194, Australian Bar & Beverage Group sought to remove seven Margaritaville marks (including Jimmy Buffett’s Margaritaville and Compass Margaritaville Hotels & Resorts) for non-use.

The Delegate accepted evidence of use for some services (like hospitality and merchandise), but not for the full scope of classes. The marks were partially removed under s 92(4)(b) of the Trade Marks Act 1995 (Cth).

Why It Matters

• Global reputation ≠ automatic protection in Australia.

• Use must be local, genuine and within the relevant three-year period.

• Even iconic brands risk partial removal if they don’t show sustained Australian use.

IP Mojo Take

Non-use actions are powerful — especially where big overseas brands file broadly but trade lightly here.

For challengers, they’re a chance to clear space.

For global brands, they’re a warning: don’t assume reputation alone will save you.

No Use? No Worries: ETO Brand Wins Back Its Mark

When ETO Group (formerly ETORO Group) lost its “ETO” trade mark in a non-use battle before IP Australia, most would have assumed the fight was over … but it wasn’t.

The Delegate had ruled that “ETO” hadn’t been used in Australia for the relevant three-year period — a fatal finding under s 92(4) of the Trade Marks Act 1995.

But ETO appealed. And when the non-use applicant — ETO Gruppe Technologies GmbH — filed a submitting notice and the Registrar declined to appear, the Federal Court stepped in to set things straight.

The decision: ETO Group Pty Ltd v ETO Gruppe Technologies GmbH [2025] FCA 1253 (Markovic J, 15 October 2025)

⚖️ A Procedural Reversal — and a Lesson in Persistence

Under s 104 of the Trade Marks Act 1995 (Cth), a non-use appeal to the Federal Court is a hearing de novo. The Court “stands in the Registrar’s shoes” and considers the matter afresh, not merely reviewing for error.

But what happens when no one contests the appeal?

Markovic J followed a clear line of authority from Hungry Spirit Pty Ltd v Fit n Fast [2020] FCA 883 and Thomas v Monsoon Group Pty Ltd [2025] FCA 911:

The Court may reverse a delegate’s decision without a full merits hearing — provided there’s “no self-evident reason” not to.

In other words, if the non-use applicant walks away and the Registrar doesn’t object, the Court can reinstate the mark, so long as there’s no obvious factual or legal barrier.

🏷️ The Facts in a Nutshell

• The ETO mark (No. 1683956) was registered in Class 36 for “investment and brokerage services” since 2015.

• ETO Group operates a licensed forex and CFD trading platform — under the corporate name ETO Group Pty Ltd and brand ETO Markets.

• Evidence showed use of “ETO” on promotional materials, stationery, client agreements, and financial disclosure documents — enough to suggest ongoing commercial use, even if some activity involved brand variations (like “ETO Markets”).

🧩 Why the Court Stepped In

Markovic J found no self-evident reason not to reverse the delegate’s decision, noting:

1. The non-use applicant (ETO Gruppe) no longer wished to prosecute its case.

2. The Registrar didn’t intervene.

3. There was some evidence of genuine use in Australia.

Accordingly, the appeal was allowed, the delegate’s decision was set aside, and the non-use application was dismissed. Costs were left open for written submissions.

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💡 IP Mojo Take

This one’s more procedural than punchy — but it’s important.  It shows that even if a delegate removes your mark for non-use, all is not lost:

• Appeals aren’t just for errors. A de novo hearing resets the board.

• Submissions matter. If the other side files a submitting notice, the Court can restore your mark without re-litigating use.

• Use evidence still counts. The Court must still be satisfied there’s no “self-evident” reason to uphold removal.

In short: if your opponent drops their challenge, your mark can live to fight another day.

⚙️ Practical Takeaways

• Always retain use evidence — even peripheral or mixed-brand material can prove vital.

• If you win on procedure, you still win — the Register is restored.

• And if you’re the non-use applicant? Think carefully before walking away. You might hand victory back to the brand owner.

Cards Against Humanity Plays the Non-Use Card — And Loses

When “Cards Against Humanity” tried to scrub “Cards Against Humidity” from the Trade Marks Register, the battleground was section 92(4)(a) of the Trade Marks Act — non-use and intention to use.

The applicants argued that the local owners never really intended to use the Cards Against Humidity parody-style mark and hadn’t done so.

However, the Delegate reminded us of a long-standing principle: filing itself is prima facie evidence of intent to use. Even a single act of use, if genuine and convincing, can be enough to keep a mark alive.

The opponent produced evidence — workshops, printed materials, testimony from participants — sufficient to show the Cards Against Humidity mark wasn’t a pure squatting play.

Result: Cards Against Humanity’s removal action failed.

Why it matters

• Non-use isn’t automatic — opponents must prove both lack of intent and lack of use.

• Minimal use can suffice — one bona fide act may keep a mark registered.

• Evidence discipline — declarations, workshop flyers, even attendee testimony, all counted.

💡 IP Mojo Take

The decision (Cards Against Humanity v Cards Against Humidity [2025] ATMO 201) shows how low the bar can be to defend against non-use removal.

For applicants, it’s a reminder not to assume a quirky parody mark is vulnerable just because the evidence of use looks thin.

Legacy Protects Its Legacy: Iconic Charity Defeats Opportunistic Slogan

“Leave a Legacy, Not a Lost Life.” It sounds noble — but when filed as a trade mark for charitable fundraising and counselling, it ran into an immovable obstacle: LEGACY, the century-old Australian veterans’ charity.

Legacy opposed under section 60 of the Trade Marks Act 1995 (Cth), pointing to its towering reputation: over a hundred years of service to veterans’ families, national campaigns like Legacy Week, coins, stamps, and even a tunnel named in its honour.

The Delegate agreed. The evidence showed LEGACY is a household name and an Australian icon. The slogan would cause real confusion, especially as both parties operated in the same charitable and counselling space.

Why it matters

• Reputation wins — even without deceptive similarity, s 60 protects iconic marks.

• Charitable space is no free-for-all — opportunistic filings will be blocked.

• Public interest dimension — where a mark is part of national heritage, confusion is not tolerated.

💡 IP Mojo Take

Legacy’s centenary case reinforces that reputation is the most powerful weapon in opposition. If your brand is iconic, s 60 is your shield.