Find Pty Ltd v Guangdong Oppo Mobile Telecommunications Corp Ltd

Find Pty Ltd opposed applications by GUANGDONG OPPO MOBILE TELECOMMUNICATIONS CORP., LTD. for the removal of two trade marks from the Register: trade mark number 1211190 (for goods in class 16 and services in classes 35, 38) and trade mark number 1298039 (for services in class 35). The applications for removal were made under section 92 of the *Trade Marks Act 1995* (Cth) on the ground of non-use. The matter was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether Find Pty Ltd, as the registered owner and opponent, had discharged its onus under section 100 of the Act to rebut the allegation that the trade marks had not been used in Australia during the relevant three-year period ending one month before the filing of the removal applications. This period was identified as the three years ending on 21 February 2021. The delegate was required to determine if the evidence presented by Find Pty Ltd demonstrated use of the trade marks in good faith in relation to the specified goods and services during that period.

The delegate found that the documentary evidence of use provided by Find Pty Ltd was limited, particularly given the breadth of the registered services. The delegate was unpersuaded that Find Pty Ltd had established sufficient use to rebut the non-use allegations. Consequently, the delegate concluded that it was not appropriate to exercise discretion not to remove the trade marks from the Register.

Accordingly, the delegate directed that registration 1211190 be amended to remove the services in classes 35 and 38, with the word mark remaining registered for class 16 goods. Registration 1298039 was directed to be removed from the Register in respect of all services for which it was registered. Costs were awarded in favour of GUANGDONG OPPO MOBILE TELECOMMUNICATIONS CORP., LTD.