Wenger applied to remove the Courier Luggage trade mark registration for the below mark on the grounds of non-use. The removal application was opposed by Courier Luggage.
Courier Luggage led evidence of the extensive use of its trade mark in Australia in relation to the goods for which it is registered (luggage). However, the Hearing Officer (and Wenger) noted that the exact trade mark shown above was not used, rather various differing versions shown below.
The argument before the Hearing Officer was that the use of the above trade marks was not use of a ‘substantially identical’ trade mark (as required for the purposes of a non-use removal action). The Hearing Officer sided with the Courier Luggage submission that the essential elements were all present in that the differences were not enough to effect the overall identity of the trade mark.
The opposition was successful and the registration retained on the Register.
To view the Office decision, click here.
This article is an extract from Spruson & Ferguson’s monthly summary of Australian Trade Mark Office decisions. You can view the entire month’s summary here.
Litigation Team, Trade Marks Team
Trade Marks Team