Fiskars Inc v Roy Gripske & Sons Pty Ltd

This matter concerned an application by Roy Gripske & Sons Pty Ltd (the removal applicant) to remove from the Register of Trade Marks the trade mark GATOR BLADE, registration number 707010, standing in the name of Fiskars Inc (the opponent). The removal applicant alleged that the trade mark had not been used in Australia in good faith for the goods for which it was registered.

The court was required to determine whether the opponent had established use of the trade mark GATOR BLADE in Australia in good faith during the relevant period for the goods for which it was registered. The court also needed to be satisfied that the removal applicant had standing as a "person aggrieved" under section 92(1) of the relevant Act.

The court found that the removal applicant had standing as a person aggrieved, as this was not contested and was substantiated by the evidence. Regarding the use of the trade mark, the opponent relied on a statutory declaration from its marketing manager and a catalogue dated 2001, which showed use of the GATOR BLADE trade mark on hedge shears and grass shears. The court noted that section 100 of the Act placed the onus on the opponent to rebut the allegations of non-use by establishing use of the trade mark in good faith.

The court concluded that the evidence presented by the opponent, specifically the statutory declaration and the dated catalogue, was sufficient to establish use of the GATOR BLADE trade mark in good faith for hedge shears and grass shears within the relevant period. Therefore, the opponent had rebutted the allegations of non-use.