British Telecommunications v Telstra Corporation Limited

British Telecommunications Plc (British Telecom) applied to the Registrar of Trade Marks to remove the trade mark "skyphone", registered in class 38 for aeronautical telecommunications services, from the Register. The registered owner, Telstra Corporation Limited (Telstra), opposed this removal. British Telecom sought removal on the grounds that the mark was registered without an intention to use it and had not been used, and alternatively, that it had not been used by Telstra for the three years preceding the application.

The delegate was required to determine whether British Telecom was a "person aggrieved" with standing to bring the application, and if so, whether the trade mark "skyphone" had been used in good faith by Telstra during the relevant period. The delegate also had to consider whether any non-use was due to special circumstances in the trade, and whether, in the exercise of discretion, the mark should remain on the Register.

The delegate found that British Telecom had established standing as a person aggrieved, given its pending trade mark applications for "skyphone" in related classes and its stated intention to use the mark. The delegate then considered the evidence of use. While Telstra presented evidence suggesting some use and promotional activity, the delegate found that much of this evidence related to periods outside the critical three-year window (11 April 1991 to 11 April 1994) or was too general to be probative. Specifically, evidence from Mr. Dwyer indicated use commenced in early 1995, and the Brooks declaration, despite its claims, failed to establish use within the relevant period, with some documents even referencing British Telecom's use of the mark. The delegate concluded that Telstra had not demonstrated use of the trade mark "skyphone" in good faith during the specified three-year period.

Consequently, the delegate ordered the removal of the trade mark registration 443769 from the Register.