Intellectual Property Development Corporation Pty Ltd v Malina Schinder and Adrian Schindler

Intellectual Property Development Corporation Pty Ltd (the Removal Opponent) brought an opposition against the trade mark application of Malina Schindler and Adrian Schindler (the Removal Applicants). The dispute concerned the Removal Opponent's claim to have used its trade mark, specifically variants referred to as the Pale Ale Trade Mark, Sparkling Ale Trade Mark, and Lithgow Lager Trade Mark, in connection with the sale of beer. The Removal Opponent sought to demonstrate this use through evidence including statutory declarations and photographs of the trade mark affixed to tap lenses and bottles at the Thunder Road Brewery. The Removal Applicants contended that the use of the trade mark was limited to the Thunder Road Brewery in Brunswick, Victoria, and that their own trade mark application was being hindered by the Removal Opponent's mark. The matter was heard by Adrian Richards.

The primary legal issue before the court was whether the Removal Opponent had established genuine use of its trade mark in relation to beer during the relevant period. This involved determining whether the evidence presented sufficiently demonstrated that the trade mark had been used in a manner that indicated a commercial sale of goods under that mark. A secondary issue, though not determinative of the outcome, was the historical context of the trade mark, which appeared to be inspired by an earlier mark used by "Terry's Brewery" in the mid-20th century, a connection neither party claimed.

The court considered evidence that the Removal Opponent was part of a group of companies, the "ICB Group," and that International Consolidated Business Pty Ltd (ICB) was an authorised user of the trade mark, ultimately owning the Thunder Road Brewery business and being licensed to use the trade mark. The court noted photographs showing the trade mark on tap lenses and bottles, with a declaration that bottles were principally given away rather than sold. While evidence of beer sales at the Thunder Road Brewery was asserted, no specific sales figures were provided. The court also noted the Removal Applicants' observation that use was limited to the Brunswick, Victoria brewery. The court's reasoning focused on the sufficiency of the evidence to prove genuine commercial use of the trade mark.