Battery World Australia Pty Ltd v Axon Enterprise Inc

Battery World Australia Pty Ltd (the Applicant) sought the removal of two trade marks, numbered 1438324 and 1698200, from the Register of Trade Marks under section 92 of the *Trade Marks Act 1995* (Cth) due to non-use. Axon Enterprise, Inc (the Opponent) opposed these applications. The matter was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had used the trade marks in Australia in good faith in relation to the specified goods and services during the three-year period ending one month before the filing of the removal applications. The onus was on the Opponent to rebut the allegation of non-use, as stipulated by section 100 of the Act.

The delegate considered the evidence presented by both parties, including declarations and exhibits. The Opponent's evidence was assessed against the requirements of section 92(4)(b) of the Act, which requires proof of use in Australia during the relevant period. The delegate found that the Opponent had adopted a new logo in 2016 and had transitioned to using this new logo on its products and marketing materials. Consequently, the delegate was not satisfied that the Opponent intended to continue using the trade marks in any significant way.

The delegate directed that registration 1438324 be amended to remove all class 9 goods, but it would remain registered for class 13 goods. Registration 1698200 was to be removed from the Register in respect of all remaining goods, but would remain registered for specific class 9 goods: body-worn video cameras, head-mounted video cameras, and body-worn recorders. The delegate awarded costs to the Applicant in relation to trade mark 1438324, but made no order as to costs for trade mark 1698200, as both parties had achieved a degree of success.