G'day Baby Pty Ltd v Discovery Holiday Parks Pty Ltd

G’day Baby Pty Ltd (the Opponent) opposed an application by Discovery Holiday Parks Pty Ltd (the Applicant) for the partial removal of two trade marks, G’DAY BABY and G’DAY KIDS, from the Register of Trade Marks. The application for removal was made under section 92 of the *Trade Marks Act 1995* (Cth) on the grounds of non-use in relation to specific goods and services. The matter was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had established use, or intended use, of the trade marks G’DAY BABY and G’DAY KIDS in Australia during the relevant three-year period preceding the filing of the removal application, specifically the period ending on 7 September 2020. The onus was on the Opponent to rebut the allegation of non-use, as stipulated by section 100 of the Act. The delegate also considered whether, in the absence of established use, it was appropriate to exercise discretion not to remove the trade marks, particularly in light of potential consumer confusion or practical impact on the Opponent's interests.

The delegate found that the Opponent had not satisfied the onus of establishing use of the trade marks in relation to the services in question, nor had it demonstrated an intention to use them in the future for those services. The Opponent’s business primarily involved children's clothing, including a loyalty program and mail order sales, which the delegate determined did not compete with the specialist business services for which the trade marks were registered. Consequently, the delegate concluded that removal of the trade marks for those services would not cause consumer confusion or practically impact the Opponent’s interests.

Accordingly, the delegate directed that the registrations for trade marks 1620905 and 1620941 be amended to remove the specified services one month from the date of the decision, unless a notice of appeal was filed. The Opponent was also ordered to pay the Applicant's costs.