Auswool Products Pty Ltd v Source Co International Pty Ltd

Auswool Products Pty Ltd opposed applications by Source Co International Pty Ltd to remove two registered trade marks, AUSWOOL PRO & Device and AUSWOOL PRO, from the Register of Trade Marks. The applications for removal were brought under section 92 of the *Trade Marks Act 1995* (Cth). The matter came before Tracey Berger in the Federal Court of Australia.

The primary legal issue before the Court was whether the trade marks had been genuinely used in Australia in relation to the goods for which they were registered, specifically in classes 24 and 25, within the three years preceding the filing of the removal applications. Source Co International Pty Ltd contended that there had been no such genuine use, thereby entitling them to have the registrations removed.

Tracey Berger considered the evidence presented by both parties regarding the use of the trade marks. The Court applied the principles established in trade mark law concerning "genuine use," which requires more than token or sporadic use and must demonstrate a real commercial exploitation of the mark in the course of trade. The Court analysed the nature, duration, frequency, and volume of the use, as well as the identity of the trading persons and the geographical area of use. After reviewing the evidence, the Court found that Auswool Products Pty Ltd had not discharged its onus to prove genuine use of the trade marks in Australia for the relevant period.

Consequently, the Court ordered that the trade mark registrations be removed from the Register of Trade Marks.