Andrew J. Jones v Myer Stores Limited

[1995] ATMO 3

TRADE MARKS ACT 1955

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS,
WITH REASONS

Re:Application under section 23 by ANDREW J. JONES to remove from the Register Trade Mark Registration number A401186 in the name of MYER STORES LIMITED

Trade mark registration number A401186 for the mark MOMENTO is registered in the name of MYER STORES LIMITED ("the registered proprietor"), in respect of "clothing, shoes and all other goods included in this class", namely, class 25, the effective date of registration being 14th December 1983.  On 1st June 1988, ANDREW J. JONES ("the applicant") filed an application under section 23 of the Act for removal of the trade mark from the Register in respect of all or any of the goods for which it is registered.  The ground upon which the application is based is:

"After investigation, no evidence of useage (sic) of this trademark can be found on goods in class 25".

In accordance with sub-regulation 22(2), the applicant was required to serve a copy of the section 23 application on the registered proprietor of the mark.  In an official letter of 24th June 1988, the applicant was advised that before the section 23 application may be advertised in the Official Journal, the Registrar needed to be satisfied that a copy of the application had been served on the proprietor which could be met by proof of posting of the document by way of an "AR" card.  The applicant's attention was directed to the provisions of reg. 75 which set out the proof of service requirement.  A further letter was dispatched to the applicant on 5th July 1989 to the effect that the requirement had not been satisfied, and that the Registrar proposed to set a limit on the time for compliance with sub-reg. 22(2), as provided by reg. 70, unless within one month from the date of the letter the applicant could show good reason for the delay.  No response was received to either official letter.

By a letter of 15th November 1994, the applicant was advised that in view of the time which had elapsed since the letter of 5th July 1989, and because no action appeared to have been taken in relation to the section 23 application, the Registrar intended to refuse the application, unless the applicant desired to be heard in the matter within 14 days from the date af the letter.  The applicant did not apply for a hearing within the prescribed time.

By neglecting to provide proof of notification of service of the application to the registered proprietor, the applicant has failed to set in motion the proceedings in terms of section 23 of the Act, nor has he elected to present a case explaining the circumstances for the failure to do so.  I see no reason therefore why I should not dismiss the application.  Accordingly, I refuse the application to remove from the Register trade mark registration number A401186.

Vija Zars

Senior Examiner

20 January 1995