Fugro NV v Marine Acquisition Corp

The proceeding involved an opposition by Marine Acquisition Corp (the Opponent) to the removal of its registered trade mark, registration number 937776, from the Register. Fugro NV (the Applicant) sought the removal of the trade mark on the grounds of non-use. The matter was heard by Cristy Condon.

The primary legal issue before the court was whether the Opponent had established use of the trade mark in relation to the registered goods and services during the relevant period, as required to resist removal under section 92(b) of the relevant Act. Specifically, the court had to determine if the Opponent's goods, described as a "receiver," could be classified as "nautical goods" as claimed in the trade mark specification, or if they were solely "navigational instruments."

The court reasoned that to successfully oppose removal, the Opponent needed to demonstrate actual use of the trade mark, or circumstances constituting an obstacle to use. The Opponent relied on evidence, including dated brochures and an agreement, to establish use of the trade mark in Australia within the relevant period. The court found that the definition of "nautical" included "navigation," and that the Opponent's receiver, used in integrated navigational and positioning services offshore, could appropriately be described as both a nautical and navigational instrument. Consequently, the court was satisfied that the Opponent had established use of the trade mark in relation to the registered goods and services.

The court decided that the Opponent had established its opposition to the removal of the trade mark. Accordingly, registration 937776 was not to be removed from the Register in respect of any of the registered goods and services. The court further directed that if a notice of appeal was served within one month, the registration was to be dealt with as the Court saw fit.