Elizabeth O’Connor-Cowley and Philip Cowley v Accent Lifestyle Pty Ltd

This decision concerns applications by Elizabeth O’Connor-Cowley and Philip Cowley (the Removal Opponents) to remove two trade mark registrations owned by Accent Lifestyle Pty Ltd (the Registrant) under sections 92(4)(a) and 92(4)(b) of the *Trade Marks Act 1995* (Cth). The dispute centred on whether the Registrant had used the trade marks in Australia in relation to the goods for which they were registered, and whether there was an intention to use them. The matter was heard by Nicole Worth, a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the Removal Opponents had established grounds for removal under section 92(4)(a) of the Act, which relates to non-use of a trade mark, and under section 92(4)(b), which concerns whether the registered owner had a relevant intention to use the mark. The delegate was also required to consider the exercise of discretion regarding the retention of the registrations, even if grounds for removal were established.

The delegate found that the Removal Opponents had not rebutted the allegation of non-use under section 92(4)(a) in respect of either registration. However, the delegate was satisfied that it was reasonable to exercise the Registrar’s discretion to retain the registrations for specific goods. The reasoning involved a detailed examination of the evidence of use and intended use. While acknowledging that scarves, wraps, and capes are items of clothing, the delegate determined it was not appropriate to maintain registration for the entire category of 'clothing' in Class 25, given the lack of use or apparent intended use beyond scarves, wraps, and capes. The delegate considered the bare statement of intention by Ms. O’Connor-Cowley insufficient to justify retaining the broader description.

Consequently, the delegate directed that the specifications of goods in the registrations be amended. Registration 1084181 was to have all goods deleted except for 'Scarves, wraps, capes' within Class 25. Registration 1826475 retained its existing specifications for Class 14 and Class 18. The delegate also ordered that each party bear its own costs, as both had achieved a degree of success.