Calvin Klein Trademark Trust v Graf Group Pty Ltd

In the Federal Court of Australia, Justice Vija Zars considered a dispute between the Calvin Klein Trademark Trust (the applicant) and Graf Group Pty Ltd (the respondent). The applicant sought to expunge from the Register of Trade Marks a trade mark registered by the respondent, alleging that the respondent had not genuinely used the mark in Australia. The trade mark in question was for the word "CALVIN KLEIN" for use in relation to "clothing, footwear and headwear". The applicant contended that the respondent had not used the mark in relation to these goods, or alternatively, that the use was not genuine.

The central legal issue before the Court was whether the respondent had made genuine use of the trade mark "CALVIN KLEIN" in Australia in relation to clothing, footwear, and headwear, as required by section 92(4)(b) of the *Trade Marks Act 1995* (Cth). This involved determining the nature and extent of the use that constitutes "genuine use" for the purposes of the Act, and whether the evidence presented by the respondent satisfied this threshold. The applicant also raised arguments concerning the respondent's intention to use the mark, but the primary focus remained on actual use.

Justice Zars applied the principles established in case law regarding genuine use, which requires an objective assessment of the commercial reality of the use. The Court considered the volume of sales, the duration of use, the frequency of use, and the geographical extent of use within Australia. The evidence presented by the respondent included invoices and sales records, which the Court examined to ascertain whether the use was more than token or sporadic. The Court noted that genuine use does not necessarily mean extensive use, but it must be real and substantial in the context of the trade mark and the goods or services.

The Court found that the respondent had not discharged the onus of proving genuine use of the trade mark in Australia. The evidence of sales was found to be minimal and sporadic, not demonstrating a consistent and commercial use of the mark in relation to the registered goods. Consequently, Justice Zars ordered that the trade mark registered by Graf Group Pty Ltd be expunged from the Register of Trade Marks.