Federal Court Determines That “Double Patenting” Is Not a Basis for Revocation

Siltech Pty Ltd v Quantum Corporation [2013] ATMO 93

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This case concerned an application to remove a trade mark from the register for non-use under section 92 of the Act.

Quantum Corporation sought to remove the mark QUANTUM registered broadly in respect of class 37 building and maintenance services, and class 42 technical advice relating to fire prevention and computer software.

The delegate reiterated that the removal opponent bears the onus (on the balance of probabilities) of rebutting the allegation through evidence of use of the mark. The use may in some instances be one single use, however, it is unlikely to persuade if it is from the files and records of the opponent only.

A relevant office of the removal opponent gave evidence of use of the QUANTUM mark in conjunction with other words including QUANTUM AIR CONDITIONING and QUANTUM TECHNICAL SERVICES.

The applicant submitted that the delegate was to consider whether there had been use of QUANTUM without additional word elements.

The Delegate was satisfied that there was use of the trade mark, but that this use was limited to certain services around air conditioning, heating, refrigeration, repair and maintenance of optical scanners.

In respect of certain other services within class 37, and for the entire specification of services within class 42 the Delegate was not satisfied that there had been any use, and exercised his discretion under the Act to retain the mark on the register subject to amendments to the specification for those services in relation to which the mark was not used.

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