This case concerned an opposition to an application to remove a trade mark filed by East Side Clothing Pty Ltd. The mark that East Side sought to have removed was the following device registered in respect of handbags, wallets and coin purses:
The Delegate noted that in applications for removal Section 100 of the Trade Marks Act places the burden on the opponent to rebut allegations of non-use or lack of intention to use, by establishing the mark has been used (or used with additions or alterations not substantially affecting its identity) in good faith in respect of the relevant goods or services within the relevant periods set out in the Act. The relevant period is the three years ending one month before the filing of the non-use application.
The trade mark owner / removal opponent led evidence of screenshots at the Google site and some photographs of goods bearing the marks, however the removal applicant pointed out that none of the images in evidence were dated, and could not substantiate use in the relevant period. The Delegate agreed with the removal applicant that the evidence was lacking in this respect. While there was evidence of extensive evidence to establish a brand in the USA, there was no evidence of a single sale in the relevant period in Australia.
The application to remove the trade mark from the register was granted.