Inghams Enterprises Pty Limited v Tegel Foods Limited

Inghams Enterprises Pty Limited (the applicant) sought the removal of the TEGEL trade mark from the Register of Trade Marks in respect of poultry products. The opponent, Tegel Foods Limited, had ceased using the trade mark in 1997, although it had continuously used it since the 1940s. The matter came before a delegate of the Registrar of Trade Marks.

The primary legal issue was whether the Registrar should exercise discretion under section 101(3) of the *Trade Marks Act 1995* (Cth) to allow the TEGEL trade mark to remain on the Register, despite the established non-use. This required consideration of whether the opponent had a "residual reputation" in the mark and other factors relevant to the exercise of discretion.

The delegate considered evidence from industry professionals suggesting that consumers would likely associate the TEGEL mark with the opponent, even after a period of non-use. The delegate also noted that the opponent had not abandoned the trade mark and that the applicant had entered the market without ascertaining the existence of rights to the mark. Applying principles from previous cases, the delegate found that it was reasonable to exercise discretion in favour of the opponent.

The delegate decided that the TEGEL trade mark should not be removed from the Register in respect of poultry products. The opponent's application for removal was therefore dismissed.