Automotive Distributors applied to remove Stafford’s registration for ‘Blueprint’, which was held in the name Australian Carburettors and Fuel Injection. Stafford opposed the removal on the basis that the trade mark had been in continuous use since registration.
The trade mark registration at issue was originally applied for under a Victorian Business Name that was cancelled around one year after the trade mark was registered (1997). No similar business name existed until around 2013.
In any event, the Hearing Officer noted that a business name has no prima facie legal personality and cannot own a trade mark registration. Whilst the holder of a business name may have the required legal personality and be able to correct the ownership issue, where the business name is cancelled (as is the case here) there is nothing to correct.
Accordingly, despite Stafford’s efforts to show use of the trade mark ‘Blueprint’ in relation to the registered goods, the registration is to be removed as there was no legal personality behind the trade mark during the relevant non-use period. The trade mark could not, therefore, have been used by the registered owner during the non-use period.