Aywon International Holdings Pty Ltd v Aquarius Wetsuits (Pty) Limited

[2001] ATMO 45

TRADE MARKS ACT 1995

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

Re:Opposition by Aywon International Holdings Pty Ltd to the application to remove trade mark registration number 397149(25) - FRONTLINE- under section 92 of the 1995 Act by Aquarius Wetsuits (Pty) Limited.

Trade mark 397149 consists of the word trade mark FRONTLINE and is registered in the name of Aywon International Holdings Pty Ltd. The mark is registered in respect of class 25 goods, specified as:

Knitwear, tee-shirts, shirts, skirts, pants, dresses, swimwear and shirts for women

An application under s92(4)(b) of the Trade Marks Act1995 for the removal of these two marks from the Register was filed by Aquarius Wetsuits (Pty) Limited on 3 August 2000. Accordingly the relevant three year period for alleged non-use under s92(4)(b) commences on 3 July 1997 and ceases on 3 July 2000.

In accordance with the requirements of regulation 9.1, the application filed by Aquarius Wetsuits (Pty) Limited was in the approved form. It was accompanied by a declaration made on behalf of Aquarius Wetsuits (Pty) Limited, which states that an inquiry into the use of the trade mark was undertaken and it sets out findings which support the application in terms of subsection 92(4) of the Act. The removal application was advertised, and, within the time allowed per the provisions of regulation 9.3, Aywon International Holdings Pty Ltd filed its notice of opposition to the removal application and served a copy on Aquarius Wetsuits (Pty) Limited.  In accordance with regulation 9.4, regulations 5.7 to 5.17 then came into operation, and the opponent, Aywon International Holdings Pty Ltd, had three months in which to serve and file evidence to support its opposition.

Aywon International Holdings Pty Ltd filed no evidence and did not serve a notice stating that it did not intend to rely on evidence in support. Nor did it seek an extension of time in which to file evidence.  Further, Aywon International Holdings Pty Ltd did not request a hearing.

In these circumstances, the provisions of regulations 9.4(3) and (4) come into operation. The sub-regulations read:

(3) If the opponent:

(a) does not serve a copy of the evidence in support in accordance with subregulation 5.7 (1); or

(b) serves a copy of a notice under subregulation 5.8 (1); or

(c) does not serve a copy of that notice within the time allowed in that subregulation;

and the opponent does not request a hearing under subregulation (2), the opposition proceedings are taken to have ended, but are not taken to have been discontinued or dismissed.

(4) If:

(a) under subregulation (3) opposition proceedings are taken to have ended, but are not taken to have been discontinued or dismissed; and

(b) the Registrar is satisfied that the grounds on which the opposed application was made have been established;

the Registrar must determine the application in accordance with section 101 of the Act.

Section 101 authorises the Registrar to remove a trade mark registration in respect of all or any of the goods to which the application relates.  Section 100 lays down that in any proceeding relating to an oppositions application, it is for the opponent to rebut any allegation made under paragraph 92(4)(b) that the trade mark has not, at any time during the relevant period, been used, or been used in good faith, by its registered owner in relation to the relevant goods.

The opponent, Aywon International Holdings Pty Ltd, has not filed evidence of any use at all. It has failed to meet the onus imposed under Part 9 of the Act.  Accordingly I find that its opposition to this removal fails.

I dismiss the opposition by Aywon International Holdings Pty Ltd and I order that trade mark number 397149 be removed from the register.

Jock McDonagh
Hearing Officer

31 May 2001