Mel is a highly-valued member of our team, having joined Madderns in 2021. She has a PhD in organic chemistry and a Masters of IP Law. Mel has a thorough understanding of IP law and draws on her extensive expertise to deliver meaningful support to her clients.

In recent weeks Mel has been on the ground in Boston for the Biotechnology Innovation Organization International Convention, the world’s largest and most comprehensive event for biotechnology, where she was able to spend time refining her understanding about the biotech ecosystem, meeting everyone from researchers and startups to investors, government agencies and pharmaceutical companies.

Check out Mel’s video here.

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Anthony Lee was recognised as both a Patent and Trade Mark Star, Louise Emmett as a Trade Mark Star and Mark O’Donnell and Martin Pannall as Patent Stars in Managing IP’s 2025 IP Stars, a guide which highlights leading practitioners in the intellectual property field.

The IAM Patent 1000 identifies the world’s leading patent professionals and firms, acknowledging those who consistently deliver outstanding results for clients, with the 2025 rankings recognising our firm as a leader in patent law.  Partners Jeff Holman, Mark O’Donnell and Stephen O’Brien have been individually recommended, further highlighting the depth of expertise across our team.

World Trademark Review  – WTR 1000: the World’s Leading Trademark Professionals guide, identifies leading trademark practitioners and firms around the globe, and has recognised Madderns for its expertise in trade mark prosecution, along with Partners Megan Ryder and Louise Emmett, and Consultant, Craig Vinall, who have been individually recognised.

Partners Megan Ryder and Louise Emmett have been recognised in the 2026 edition of The Best Lawyers in Australia and the 2025 Doyle’s Guide for South Australian Intellectual Property law.

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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” as cars.

There is no dispute that ATTO applied by BYD is the same as the ATTO used by Moving Life. The central question before the Hearing Officer was whether foldable mobility scooters and cars constitute the “same kind of thing.”

The Hearing Officer referred to the decision of Colorado Group Ltd v Strandbags Group Pty Ltd for guidance, where Allsop J articulated the principle that the inquiry should focus on identifying the “true equivalent kind of thing or article” in a practical, common-sense manner. This approach differs from considering broad functional or aesthetic similarities and avoids considerations of potential confusion in the marketplace. As Allsop J illustrated, the use of a mark on “hatchets or small axes” establishes proprietorship in relation to “axes”.

Moving Life argued that the definition of “car” includes microcars, which they contended are essentially quadricycles differing from standard cars only in regulatory aspects like power, weight, and top speed. Furthermore, they submitted that the function, features, servicing, maintenance, market, trade channels, audience, methods of promotion, and financing of microcars significantly overlap with mobility vehicles.

However, the Hearing Officer rejected this argument, concluding that the nature of a foldable mobility scooter is fundamentally different from that of a car, even a microcar. The Hearing Officer highlighted the following distinctions. For Foldable Mobility Scooter: A lightweight disability vehicle primarily used off-road by a single person, electrically powered, and designed to fold for portability. For Microcar (as a type of car): A vehicle used on road networks, featuring an enclosed body, capable of carrying multiple occupants, and generally wider than a mobility scooter, resembling a conventional car in its form factor.

While Moving Life presented evidence of a business offering both product types, the Hearing Officer noted that the mere co-existence of these products within a single business does not automatically classify them as the “same kind of thing”.

The Hearing Officer further emphasized the distinct treatment of these vehicles in Australia: individuals using mobility scooters are considered pedestrians and typically purchase them from specialized mobility retailers. In contrast, microcars are sold through car dealerships, and their operation requires a driver’s license. These are tangible utilitarian goods that do not offer the same mobility solutions, and one is not a substitute for the other.

Ultimately, the Hearing Officer determined that foldable mobility scooters and cars are not the “same kind of thing,” leading to the failure of Moving Life’s opposition under Section 58.

The Hearing Officer also dismissed other grounds of opposition raised by Moving Life, including: s60: Trademark similar to a trademark with an established reputation in Australia; s42(b): Trademark scandalous or its use contrary to law (alleging contravention of Sections 18 and 29 of the Australian Consumer Law and passing off); s62A: Application made in bad faith.

This case underscores the importance of a practical, common-sense assessment when determining whether goods are of the “same kind” for trademark opposition purposes.

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https://www.seek.com.au/job/69559980

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In Australia, once a trade mark has been registered for a certain number of years*, anyone else can file an application to request the cancellation of that registration on the basis of non-use. This is called a “non-use removal application”.

Your trade mark registration won’t automatically be cancelled if someone else files a non-use removal application.  You will always have the opportunity to defend your registration if you wish to do so.

How do you defend a non-use removal application?

To stop your registration from being cancelled, you will need to show either (a) that you have used the trade mark during a defined three-year period for the particular products or services your registration covers, or (b) argue that there are reasons for maintaining your registration even though the mark is not being used. This requires preparing and filing a formal declaration(s) with supporting exhibits. Unfortunately, this process can involve considerable time and expense. For more information on the process involved, see our information sheet.

Why does the system allow this?

In Australia, unlike some other countries, you do not need to provide evidence that you are using a particular trade mark in order to register that mark or, at a later date, renew the registration. This means that older Australian registrations that are not being used can sometimes remain on the Register and then block new applications. Filing a removal application provides new applicants with the opportunity to ‘clear the way’ for their own trade marks to be registered.

Key takeaway: Keep good records showing how you use your registered trade marks so that you are in the best possible position to defend a removal application should you need to do so.

If you have not appointed a firm to manage your registered trade marks for you, always ensure that you keep your name and address details up to date on the Trade Marks Register so that you will be informed if a removal application is filed. If you would like to appoint Madderns to manage your trade marks for you, please get in touch with a member of our Trade Marks Team.

*If the trade mark was filed before 24 February 2019: 5 years from the date the trade mark registration was filed.

If the trade mark was filed after 24 February 2019: 3 years after the date that the trade mark proceeds to registration

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In the IP Stars global survey for 2022, Craig Vinall (Engineering), Martin Pannall (Information and Communications Technology) and Mark O’Donnell (Life Sciences & Chemistry) were recognised as Patent Stars for their outstanding patent work.

Louise Emmett (Trade Marks) has been recognised as a Trade Mark Star for her outstanding trade mark prosecution, and ICT partner Dr Anthony Lee has received recognition as both Patent Star and Trade Mark Star.

Managing Partner Jeff Holman, Mark O’Donnell, Stephen O’Brien and Craig Vinall were all given mentions in the IAM Patent 1000 for their longstanding experience and comprehensive range of skills spanning the entire patent life cycle.

The IAM Patent 1000 has established itself as the definitive ‘go-to’ resource for those seeking to identify world-class, private practice patent expertise. IP STARS is the leading resource for companies or individuals looking for experienced legal practitioners for contentious and non-contentious IP advice.

To find out more about the Madderns team members who have featured, please click here

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The GrowWell watering device has been designed to minimise water wastage – an important feature in today’s climate-conscious world.

The GrowWell watering device inserts into the ground using natural soil properties.  Director and founder Sandro Iuliano, a mechanical engineer with a design and manufacturing background, said that via its innovative well design, the GrowWell watering device conserves water, focuses nutrients and decreases plant maintenance routines – allowing gardeners to reduce soil preparation, watering and weeding.

“Food production requires significant resource usage in terms of energy, fertilisers, labour and water,” Mr Iuliano said.

“These elements are precious and copiously needed in horticultural and agricultural systems worldwide.

“The design and implementation of more sustainable practices to food production are increasingly required to promote efficient utilisation and management of these key natural resources. Focus Planting Australia aspires to drive awareness and understanding around these factors to inspire a new methodology and technology to planting food and ornamental crops.”

This philosophy has driven GrowWell’s design and development, from channelling water directly to where the plant needs it and reducing water wastage, to the fully recyclable material from which it is made.

Recognised as a finalist for SALife’s Absolute Best Awards for South Australia’s Best New Product Innovation, the GrowWell watering device is the first release of the innovative and patent-pending Focus Planter gardening technology.

GrowWell watering device benefits include:

• Focussed nutrient and water application
• Less laborious soil preparation
• Higher watering efficiency and less evaporation
• Greater protection against elements, animals and pests
• Reduced weeding; eliminating more than 90% of invasive weeds within the root zone
• Avoids the need for expensive mulches
• Easier planting on slopes and uneven surfaces
• Greater heat retention in soils for stronger, healthier plants
• Compatible with high-flow irrigation
• Easy and convenient installation
• 100% recyclable

The GrowWell watering device is the subject of patent applications in a number of countries, as well as two Australian Design Registrations, all prepared and filed by Madderns.

Working with Madderns, Focus Planting Australia has developed a protection strategy, including selecting relevant countries where protection for GrowWell is needed in potential customer markets. Madderns’ strategy has provided Focus Planting Australia with the opportunity to leverage its IP position to maximise the potential for future partnerships in other countries.

To learn more about the GrowWell watering device system, visit www.focusplantingaustralia.com.au

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