Food Channel Network Pty Ltd v Television Food Network, G.P

The dispute before the Trade Marks Hearings Officer, Debrett Lyons, concerned an opposition by Television Food Network, G.P. to the registration of trade mark 733265 by Food Channel Network Pty Ltd. The opposition was brought on the grounds that the trade mark had not been used in relation to the services for which it was registered.

The primary legal issue was whether the opponent had discharged the burden of proof, as stipulated by section 100 of the relevant legislation, to demonstrate that the trade mark had not been used. This required the opponent to identify the specific services in respect of which the trade mark was allegedly not used and to provide evidence of such non-use.

The Hearing Officer found that the opponent had failed to meet this burden. The Notice of Opposition did not identify who had allegedly used the trade mark or the services in respect of which such use (or lack thereof) was alleged. Crucially, there was no evidence admitted to the record to support the opposition. Consequently, the opposition was not established.

The Hearing Officer directed that trade mark registration 733265 be removed from the register in respect of all registered services within one month of the decision, subject to any appeal. The opponent was also ordered to pay the applicant's costs.