Darley Stud Management Company Limited v Kevin Francis Darley

This matter concerned an application by Darley Stud Management Company Limited (the Applicant) to remove the trade mark DARLEY from the Register of Trade Marks, pursuant to section 92(4)(b) of the *Trade Marks Act 1995* (Cth). The trade mark was registered in classes 41 and 44 for various animal breeding and training services. Kevin Francis Darley (the Opponent) opposed this removal. The Plumptre Declaration, filed on behalf of the Opponent, detailed the extensive use of the DARLEY trade mark by entities within the broader Darley Group, including Godolphin, for thoroughbred stud and breeding operations in Australia and internationally since 1984. The Applicant had filed no evidence.

The primary legal issue before the Hearing Officer was whether the Opponent had established use of the trade mark DARLEY in relation to the registered services, as required by section 100 of the *Trade Marks Act 1995* (Cth), or whether the Registrar should exercise discretion under section 101(3) to allow the trade mark to remain on the Register. As the trade mark had been registered for more than five years, the Hearing Officer considered only section 92(4)(b) for removal.

The Hearing Officer found that the Opponent had established sufficient use of the trade mark DARLEY, either directly or through circumstances constituting an obstacle to use, to satisfy the requirements of section 100. The evidence demonstrated that the Darley Group, including Godolphin, had extensively used the trade mark for thoroughbred stud and breeding services in Australia since at least 2000, involving significant operations, marketing, and financial investment. Consequently, the Hearing Officer decided that the Opponent had successfully opposed the application for removal.

Accordingly, the Hearing Officer ordered that the trade mark registration 952147 should not be removed from the Register in relation to any of the goods for which it was registered, and directed that costs be awarded against the Applicant in accordance with Schedule 8 of the *Trade Marks Regulations 1995*.