Gregory Edward Haywood v the Boneyard Pty Ltd as Trustee for the Meatworks Family Trust

This matter came before the Federal Court of Australia, with Justice Kirov presiding, concerning an application by Gregory Edward Haywood (the Removal Applicant) to remove certain trade marks from the Register of Trade Marks, held by The Boneyard Pty Ltd as Trustee for the Meatworks Family Trust (the Opponent). The core of the dispute revolved around whether the Opponent had made genuine use of the trade marks during the relevant three-year period preceding the application for removal. The Opponent failed to file any sworn evidence in support of its claim of use.

The primary legal issue before the Court was whether the Opponent had demonstrated genuine use of the GIMP trade marks in Australia in relation to the goods and services for which they were registered, within the three-year period immediately preceding the removal application. This required the Court to consider the nature and weight of evidence presented in trade mark opposition proceedings, particularly in the absence of formal statutory declarations.

Justice Kirov reasoned that the Opponent's correspondence to IP Australia, which was not in the form of a sworn declaration, carried little evidentiary weight. While acknowledging the information provided regarding past efforts, future plans, and discussions concerning the trade marks, the Court found that even if this information had been properly presented as evidence, it would have been insufficient to establish genuine use. Much of the described activity predated the relevant non-use period, and the use that might have occurred during the period was primarily in relation to golfing equipment, which was not covered by the registered goods and services. The only statement potentially relating to use within the relevant period, concerning an informal business arrangement to sell products and merchandise, was deemed insufficient on its own to satisfy the threshold of genuine use.

Consequently, the Court found that the Opponent had failed to discharge its onus of proving genuine use of the trade marks. The application for removal was therefore granted.