Amazon Technologies Inc. v The Echo Label Limited

This matter concerned an application by Amazon Technologies Inc. (the applicant) to remove a registered trade mark from the Register of Trade Marks, pursuant to section 92(4)(b) of the Act. The respondent, The Echo Label Limited, sought to rely on evidence of use to rebut the allegation of non-use. The hearing officer was required to determine whether the respondent had demonstrated sufficient use of the trade mark in Australia during the relevant period to avoid its removal from the Register.

The central legal issue was whether the evidence adduced by the respondent, primarily through the declaration of Peter Stack and its annexures, established that the trade mark had been used in Australia in relation to the registered goods within the relevant period. Specifically, the hearing officer had to assess if the evidence demonstrated use of the trade mark as applied for, without substantial alteration, and as a trade mark in the course of trade.

The hearing officer found that the evidence presented by the respondent had deficiencies that prevented satisfaction of the use requirement. While royalty statements indicated sales of recordings produced by the respondent, they did not contain or refer to the trade mark. Furthermore, images of CDs and cover sleeves, intended to illustrate the trade mark's application, were undated and not confirmed by the declaration to represent use within the relevant period. Consequently, the hearing officer was not satisfied that the trade mark had been used in Australia in the relevant period in relation to audio visual recording and reproducing apparatus and instruments.

The application for removal was successful in respect of audio visual recording and reproducing apparatus and instruments, and the registration was directed to be removed from the Register for those goods. However, the hearing officer was satisfied that it was reasonable to exercise discretion and not remove the trade mark in respect of records, tapes, discs, and CDs, and therefore the registration was maintained for those goods. Each party was ordered to bear its own costs.