Energy Beverages LLC v Cantarella Bros Pty Limited

Energy Beverages LLC (the Applicant) sought to register the trade mark "MOTHER" for energy drinks, and Cantarella Bros Pty Limited (the Opponent) opposed this application. The Opponent also sought removal of the Applicant's registered trade mark for the same mark on the grounds of non-use. The matter was heard by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had established a ground for removal of the Applicant's trade mark under section 92(4)(b) of the relevant Act, which concerns non-use of a trade mark for a continuous period of three years. The delegate confined consideration to this ground, as establishing one ground for removal is sufficient to achieve the provision's purpose. The onus was on the Opponent to rebut the allegation of non-use on the balance of probabilities.

The delegate found that the Opponent had satisfied the requirement that the removal application was filed more than five years after the initial application for registration. The relevant period for establishing use was the three years ending on 13 January 2018. Evidence was presented demonstrating that the predecessor in title, The Coca-Cola Company, intended to enter the Australian energy drink market in 2006, launched "MOTHER" branded beverages in 2007, and that these beverages have since been widely distributed and achieved significant revenue in Australia.

The delegate concluded that the Opponent had discharged its onus of rebutting the non-use allegation. Consequently, the Opponent's application for removal of the trade mark on the ground of non-use was dismissed.