Exel Composites Oyj v Seal Trademarks Pty Ltd

This matter concerned an application by Exel Composites Oyj (the applicant) to remove the trade mark "EXEL" from the Register of Trade Marks in relation to certain goods. The application was heard by Iain Thompson, acting as a delegate of the Registrar of Trade Marks. The owner of the trade mark did not appear at the hearing. The evidence before the delegate included statutory declarations detailing the applicant's business operations, its history of manufacturing and marketing composite profiles and tubes for various industrial and sporting applications, and its sales and marketing activities in Australia.

The primary legal issue before the delegate was whether the applicant had discharged its evidentiary burden under section 100 of the *Trade Marks Act 1995* (Cth) to demonstrate that the trade mark had been used in Australia in relation to all the goods for which it was registered. Specifically, the applicant argued that evidence of use was limited to ski poles and that the registration should be partially removed from the register under section 101 of the Act for all goods other than ski poles.

The delegate considered the evidence of the applicant's extensive range of products, including sports poles, laminates used in various sporting equipment, and the applicant's operations and sales in Australia since 1992, including the acquisition of an Australian company in 2006. While acknowledging that direct evidence of use in Australia was primarily for ski poles, the delegate applied subsection 101(4) of the Act, which allows the Registrar to consider use in relation to similar or closely related goods. The delegate found that shafts for ski poles, which had been sold in Australia, were similar to other goods manufactured by the applicant, such as skating poles and shafts for sports clubs and sticks.

Consequently, the delegate directed that the specification of goods in Class 28 of the registration be limited to "ski poles, skating poles, ski pole tubes and accessories for ski poles; bags for skis and ski poles; shafts for sports clubs and sticks". The specifications for Classes 9, 17, and 19 were to remain unchanged.