American Airlines Inc v Advantagecard Pty Ltd

American Airlines Inc. (the Owner) opposed an application by Advantagecard Pty Ltd (the Removal Applicant) to remove three trade marks from the Register. The Owner alleged that it had used the impugned trade marks in relation to the services for which they were registered. The proceedings were heard by Iain Campbell Thompson, a Hearing Officer of the Trade Marks Hearings.

The central legal issue before the Hearing Officer was whether the Owner had established, on the balance of probabilities, that it had used the impugned trade marks in relation to the services for which they were registered during the relevant period. This required an examination of the nature of the Owner's operations in Australia, particularly its codeshare arrangements with Qantas and its loyalty program.

The Hearing Officer considered evidence detailing the Owner's history and its significant market share in the USA, along with its "AA device trade mark." The evidence explained that the Owner participates in the oneworld Alliance with Qantas, which facilitates codeshare agreements and reciprocal frequent flyer programs. A codeshare agreement allows multiple airlines to sell space on the same flight, with the flight being operated by one airline but sold under the flight numbers of others. The Owner's codeshare arrangements with Qantas involved flights between the US and Australia, and within Australia, where flights could be purchased under either the Qantas (QF) or American Airlines (AA) codes, even if operated by the other airline. The Hearing Officer found that this evidence demonstrated sufficient use of the impugned trade marks in relation to the registered services.

The Hearing Officer decided that the Owner had established its opposition to the removal of the trade marks from the Register. Consequently, the Removal Applicant was ordered to pay the Owner's costs on the official scale, to be apportioned between the oppositions.