Gowan Crop Protection Limited v Nufarm Australia Limited

Gowan Crop Protection Limited opposed an application by Nufarm Australia Limited to remove its registered trade mark, AVADEX (number 2101679), from the Register of Trade Marks. The application for removal was brought under section 92 of the *Trade Marks Act 1995* (Cth). The matter was heard by Louise Tuohy.

The primary legal issue before the court was whether Nufarm Australia Limited had established grounds for the removal of the AVADEX trade mark under section 92 of the *Trade Marks Act 1995* (Cth). Specifically, the court was required to determine if the trade mark had been used by the registered owner in a manner likely to deceive or cause confusion, or if it had not been genuinely used in Australia.

The court considered the evidence presented by Nufarm Australia Limited regarding the alleged non-use and deceptive use of the AVADEX trade mark. It applied the principles established in trade mark law concerning the onus of proof in removal proceedings and the interpretation of "deceptive or confusing use" and "genuine use." The court's reasoning focused on whether Nufarm Australia Limited had discharged its burden of proof to demonstrate the grounds for removal as stipulated in section 92.

The court found that Nufarm Australia Limited had not established the grounds for removal under section 92 of the *Trade Marks Act 1995* (Cth). Accordingly, the opposition by Gowan Crop Protection Limited was successful, and the application to remove the AVADEX trade mark was dismissed.