Baggio Holdings Pty Ltd v Kaba AG

This matter came before Jock McDonagh, as a delegate of the Registrar of Trade Marks, concerning an application by Baggio Holdings Pty Ltd (the applicant) to remove a trade mark from the Register. The opponent, Kaba AG, relied on evidence of its use of the trade mark. The applicant sought removal on the grounds of non-use, alleging that the opponent had not used the trade mark in Australia during the relevant period.

The primary legal issue before the delegate was whether the opponent had discharged its evidentiary burden to demonstrate genuine commercial use of the trade mark in Australia during the three-year period preceding the filing of the non-use application, as required by section 92(4)(b) of the *Trade Marks Act 1995* (Cth). A secondary issue arose from the opponent's failure to comply with a notice to produce documents relating to advertisements in the Metro Yellow Pages.

The delegate considered the evidence filed by the opponent, including invoices, a schedule of fees for Yellow Pages advertising, labels, and a business card. Despite the applicant's evidence suggesting a lack of Yellow Pages entries for "KABA INTERNATIONAL" and the opponent's non-compliance with a notice to produce further advertising documents, the delegate was satisfied that the opponent had provided sufficient evidence of genuine commercial use of the trade mark in relation to the registered services. The delegate concluded that any adverse inference that might have been drawn from the non-production of further documents would not alter this conclusion.

Accordingly, the delegate found that the opponent had discharged its evidentiary onus and established genuine commercial use of the trade mark. The application for removal was therefore refused, and the opponent was awarded its costs.