Cobber International Tradeing Pty Ltd v Uniflow Power Ltd

Cobber International Trading Pty Ltd (Cobber) sought to remove certain registered trade marks from the Register of Trade Marks held by Uniflow Power Ltd (Uniflow). The application was brought under section 92 of the *Trade Marks Act 1995* (Cth), specifically relying on the ground that the trade marks had not been used in Australia for a continuous period of three years ending one month before the filing of the application for removal. The matter was heard by Louise Tuohy.

The primary legal issue before the court was whether Uniflow had established sufficient use of its registered trade marks in Australia to resist Cobber's application for removal. This involved determining the nature and extent of use required under the *Trade Marks Act 1995* (Cth) and whether Uniflow's evidence met that threshold. A secondary issue, arising if non-use was established, was whether the court should exercise its discretion to allow the registration to remain despite the lack of use.

The court found that Uniflow had failed to establish the requisite use of the trade marks in Australia. The evidence presented by Uniflow did not demonstrate genuine commercial use of the marks in relation to the goods for which they were registered. Consequently, the court determined that the ground for removal under section 92(4)(b) of the *Trade Marks Act 1995* (Cth) was made out. The court further held that there were no exceptional circumstances warranting the exercise of its discretion to permit the continued registration of the trade marks. Accordingly, the court ordered the removal of the trade marks from the Register.