Glen Raven Mills Inc, Re

This matter concerned an application by Glen Raven Mills Inc. (Glen Raven) for the restoration of its trade mark number A464621(24), registered for "fabric in the piece included in class 24", which had lapsed due to non-payment of renewal fees. The application for restoration was opposed by Brella Pty. Ltd. (Brella), which sought to have the mark removed from the Register.

The delegate of the Registrar of Trade Marks was required to determine whether it was just to restore the trade mark to the Register under section 71(1) of the relevant legislation. This involved considering Brella's claims that Glen Raven had not properly intended to use the mark at the time of registration, and that there had been no use of the mark in the three years preceding Brella's application for removal.

The delegate found that Glen Raven had provided evidence demonstrating consistent use of the trade mark SUNBRELLA FIRESIST in Australia since the 1980s, with goods being supplied through distributors since 1987 and advertised in Australian publications. This evidence dispelled any suggestion of abandonment. While Brella highlighted the significantly lower sales figures for Glen Raven compared to its own substantial sales under a similar mark, the delegate determined that the quantum of use was not the decisive factor. The critical consideration was whether the trade mark had been used in the course of trade and not treated as abandoned. The delegate concluded that Glen Raven had not neglected its statutory duty to use the mark and that its modest sales did not preclude restoration.

Consequently, the delegate was satisfied that it was just to restore the trade mark A464621(24) to the Register. The delegate also noted that Brella's trade had been developed in the face of Glen Raven's registered rights, and therefore Brella's current position did not justify an adverse finding. No costs were awarded in this matter.