Canberra Insulation Specialists Pty Ltd v Ross William Kestle

This matter concerned an opposition to the removal of a trade mark, brought by Canberra Insulation Specialists Pty Ltd (the Removal Applicant) against Ross William Kestle (the Removal Opponent). The dispute arose from the Removal Applicant's application to remove the trade mark "Insulbloc" from the Register of Trade Marks. The decision was made by Blake Knowles, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Removal Opponent had demonstrated an intention in good faith to use the trade mark in relation to the relevant goods at the filing date, and whether the trade mark had been used in good faith in relation to those goods during the relevant period. This required the delegate to consider the evidence filed by both parties, including the adequacy and admissibility of the evidence submitted by the Removal Opponent.

The delegate reasoned that the Removal Opponent had established the necessary intention and use of the trade mark. Despite significant deficiencies in the initial evidence, particularly the reliance on a solicitor's declaration and unclear connections between the evidence and the Removal Opponent, the delegate was satisfied by the "New Evidence" filed by the Removal Opponent. This evidence, which included a fact sheet relating to the Insulbloc system, emails concerning its import and application, and a printout from a website referencing the trade mark, was considered sufficient to demonstrate good faith intention and use.

Consequently, the delegate found that the Removal Opponent had established grounds for opposition, and the trade mark was to remain registered. However, notwithstanding the Removal Opponent's success, the delegate ordered that the Removal Opponent pay the Removal Applicant's costs. This decision was based on the Removal Opponent's failure to file sufficient probative evidence initially and the late filing of new evidence, which caused unnecessary delay and inconvenience.