Anchor Brewing Co v Kartelle Nominees Pty Ltd

This case concerned an opposition by Kartelle Nominees Pty Ltd ("the opponent") to an application by Anchor Brewing Company ("the applicant") to remove three trade marks, registered in the name of the opponent, from the Register of Trade Marks. The trade marks, LIBERTY LIQUORS, were registered in 1983 for wholesale and retail liquor services, wine, spirits, liqueurs, beer, ale, porter, and non-alcoholic beverages. The applicant sought removal on the grounds that the trade marks were registered without a good faith intention to use them, and that there had been no good faith use of the marks for a continuous period of at least three years prior to the application, except for use within the metropolitan area of Perth, Western Australia.

The legal issues before the delegate of the Registrar of Trade Marks were whether the applicant had established a prima facie case for removal of the trade marks, and whether to grant the applicant special leave to adduce further evidence. The opponent also argued that the applicant was not a "person aggrieved" and that the Registrar should exercise discretion to refuse removal even if non-use was established.

The delegate first considered the application for special leave to adduce further evidence, which related to the registration of Dileum Pty Ltd as a registered user of the trade marks. The delegate applied the test from *Ladd v Marshall*, requiring evidence to be unobtainable with reasonable diligence and likely to influence the result. The delegate found that the registration of Dileum Pty Ltd had been advertised in the Official Journal almost a year prior to the hearing, and the applicant's solicitor became aware of it in August 1990, yet the application for special leave was only made four days before the hearing. The delegate concluded that the evidence could have been obtained with reasonable diligence earlier and that its potential influence on the outcome was questionable, particularly as the opponent had not relied on use by any other party. Consequently, the application for special leave was refused.

Turning to the merits, the delegate accepted that the applicant was a "person aggrieved" due to its own trade mark application being cited against the registered marks. The delegate then examined the evidence of non-use, which primarily consisted of a declaration from a market investigator. This declaration indicated that while there were retail outlets operating under the name "LIBERTY LIQUORS" in Western Australia, no goods labelled with the trade mark were found, and investigations in other Australian states and territories failed to locate any such business or goods. The delegate found that the applicant had made out a prima facie case of non-use, and the opponent had not lodged evidence of use in rebuttal.