Infiniti Golf Pty Ltd v King Par Corporation

Infiniti Golf Pty Ltd (the applicant) sought the removal of the trade mark AFFINITY, registered by King Par Corporation (the owner), from the Register of Trade Marks. The dispute concerned allegations of non-use of the trade mark in Australia. The matter was heard by a Hearings Officer of the Trade Marks Hearings.

The Hearings Officer was required to determine whether the trade mark AFFINITY had remained registered for a continuous period of three years without use in Australia, and whether the owner had no intention in good faith to use the trade mark in Australia at the time of its registration. Specifically, the officer had to consider the provisions of section 92(4) of the relevant Act, which outlines the grounds for removal of a trade mark from the Register due to non-use.

The Hearings Officer found that production drawings submitted by the owner were of little weight due to their undated nature, lack of translation for foreign language text, and their status as photocopies. The officer noted that the trade mark was assigned to the owner on 27 October 2000, and within the relevant period for demonstrating use, the owner had approximately five months to arrange for the production of goods bearing the trade mark, which did not occur. The officer concluded that the assignment of the trade mark did not prevent its use within the relevant period.

Consequently, the Hearings Officer ordered that the trade mark registration 623661 be removed from the Register one month from the date of the decision, unless an appeal was filed. The Hearings Officer also ordered costs against the owner.