Infinair Corporation v Seeley International Pty Ltd

Infinair Corporation (the Removal Opponent) sought the cessation of protection for trade mark registration 1241812 in classes 7 and 11, owned by Seeley International Pty Ltd. The application was heard by Hearing Officer Louise Tuohy.

The central legal issue before the Hearing Officer was whether the protection of the trade mark should cease due to a lack of evidence of use or relevant obstacles to use during the relevant period. This involved considering the discretion of the Registrar under regulation 17A.48C of the Trade Marks Regulations, particularly in light of the integrity of the Register.

The Hearing Officer found that the Removal Opponent failed to provide evidence of sales of the registered goods under the trade mark, either before, during, or after the relevant period. Consequently, the evidence did not substantiate that the Removal Opponent had acquired a reputation in the trade mark. In the absence of such evidence, the Hearing Officer was unpersuaded that removing the trade mark would lead to consumer confusion or practically impact the Removal Opponent's interests. The Hearing Officer concluded that it was not appropriate to exercise discretion to allow the trade mark to remain protected in Australia for the registered goods, emphasising the importance of the Register's integrity.

The Hearing Officer directed that protection of trade mark registration 1241812 cease in respect of all goods in classes 7 and 11 one month from the date of the decision, subject to any appeal. Costs were awarded against the Removal Opponent.