The subjective nature of trade marks can be troubling.
In the decision of On Clouds GmbH v Cyclonic, Inc [2026] FCA 647, which issued this week, the trade marks examiner accepted an application for CYCLONIC.
On Clouds GmbH weren’t happy about that, and they opposed. But, the Hearing officer found in favour of Cyclonic, Inc. So, at this point, Cyclonic, Inc has won twice (their mark was accepted and they won the opposition).
Then, On Clouds GmbH appealed, and the Federal Court (not the Supreme Court, so the free stock image I have found and used with this post is a bit misleading…sorry Supreme Court) found in their favour on the basis of s 44. The Federal Court decided that CYCLONIC is too similar to CYCLON, whereas IP Australia had said it was not. After winning twice, Cyclonic, Inc lost in the third round. And…Cyclonic, Inc got a costs order of $125,000 made against them, even though they did not participate in the Federal Court process at all. It was purely a matter of On Clouds GmbH arguing that IP Australia had got it wrong. Cyclonic, Inc didn’t fight them. It just stood back, allowing On Clouds GmbH to make their case and have the judiciary rule over a decision that the executive had made.
I think about how my clients would feel about that, and how unfair it is. If IP Australia says a mark is allowable, then surely that is on IP Australia, and costs should not be awarded in oppositions or appeals won on s 44 grounds? Aren’t applicants entitled to act from a position of confidence that IP Australia has gotten it right? Or are we to have as little faith in IP Australia as many have in the other branches of the executive. If you are not sure who I am alluding to…Albanese is implementing all the CGT changes in his role as head of the executive ; )
You can read the full decision here:
https://lnkd.in/gudHjYwS
If you have a trade mark question, and you want an empathetic lawyer who genuinely cares about the consequences and understands the implications for you, come and see Hayley Tarr of Tarr Law.
