Madderns currently assists BYD in defending a Federal Court
appeal. The appeal challenged a prior IP Australia's decision
(Moving Life Pty Ltd v BYD Company Limited [2024] ATMO
148) that decided foldable mobility scooters and cars are not
considered the "same kind of thing" under Australian
trademark law.
The dispute arose when Moving Life opposed the registration of
BYD's "ATTO" trademark in relation to cars. Moving
Life claimed prior use of the "ATTO" mark in Australia
for foldable mobility scooters, predating BYD's first use of
the mark for their electric SUV.
To succeed in its opposition under s58 of the Trade Marks
Act 1995 (Cth) arguing that BYD was not the rightful owner of
the trademark, Moving Life needed to demonstrate two key elements.
Firstly, they had to prove use in Australia, by Moving Life, of a
trademark identical or substantially identical to "ATTO"
before BYD. Secondly, this use had to be in relation to goods that
are the "same kind of thing"
