Beat Rutsche v Acuda Group Limited

This matter concerned an application by Acuda Group Limited for the removal of trade mark number 1094098, known as "Best Mates" (logo), from the Australian Register of Trade Marks. The application was made under section 92(4)(b) of the *Trade Marks Act 1995* (Cth) on the ground of non-use in relation to pet food in Class 31. Beat Rutsche, the registered owner of the trade mark, opposed the removal. The decision was made by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether Beat Rutsche had established use of the trade mark in Australia during the three-year period ending one month before the application for removal was filed, or whether there were circumstances constituting an obstacle to its use during that period. If non-use was established, the delegate also had to consider whether to exercise a discretion under section 101(3) of the Act to allow the trade mark to remain on the Register.

The delegate found that the onus was on Beat Rutsche to rebut the allegation of non-use. Rutsche provided evidence including a declaration, website ownership details, a screen capture of a website or flyer, a letter to the applicant, and a photograph of cartons. However, the delegate determined that this evidence was largely undated, lacked specificity regarding the goods or services offered under the trade mark, or was dated outside the relevant period. Consequently, Rutsche failed to satisfy the delegate that the trade mark had been used in relation to the registered goods during the relevant period. Furthermore, claims of obstacles to use, such as the COVID-19 pandemic and health reasons, were not supported by corroborating evidence. The delegate also considered the discretion under s 101(3) but found no compelling reason for the trade mark to remain on the Register, noting the public interest in the Register reflecting actual use.

Accordingly, the delegate directed that trade mark number 1094098 be removed from the Register one month from the date of the decision. Costs were awarded against Beat Rutsche in favour of Acuda Group Limited.