Colin Segal v Comfort Concepts Pty Ltd

This matter concerned an application by Colin Segal (the applicant) to remove a trade mark from the Register, opposed by Comfort Concepts Pty Ltd (the opponent). The dispute centred on whether the trade mark had been used in good faith in Australia by the registered owner. The applicant contended that the trade mark was filed for and on behalf of Archi Air Pty Limited, which the applicant alleged was always the owner. The opponent claimed use of the trade mark through its shareholding and directorship of Archi Air Pty Ltd.

The primary legal issue before the Hearings Officer was whether the opponent had established its opposition to the removal of the trade mark from the Register. This required determining whether the trade mark had been used in good faith in Australia by the registered owner, or alternatively, whether the grounds for removal under section 92 of the relevant Act were made out. Specifically, the Hearings Officer had to consider the applicant's claim that any use by Archi Air Pty Limited was on behalf of the registered owners and whether this constituted use in good faith.

The Hearings Officer reasoned that any use of the trade mark by Archi Air Pty Limited was to be taken as use on behalf of the registered owners. As this use fell within the relevant period, the opponent had successfully established its opposition. The Hearings Officer ordered that the opponent was entitled to its costs incurred in the conduct of the matter.