Intencity Pty Ltd v Gavin James O'Mahoney

This decision concerns an application by Intencity Pty Ltd to remove trade mark number 565476, "INTENSITY," registered in the name of Gavin James O'Mahoney, from the Register of Trade Marks. Intencity sought removal on the grounds that the trade mark had not been used in Australia in good faith for wetsuits, wetsuit booties, and T-shirts during the three-year period ending 25 September 1996. Mr. O'Mahoney opposed the removal application, asserting that the trade mark had been used by himself and the original applicant, Waterski International Pty Ltd, during the relevant period. The matter was heard by a delegate of the Registrar of Trade Marks.

The primary legal issues before the delegate were whether Intencity Pty Ltd was a "person aggrieved" entitled to make the application, whether the removal application itself was properly made and timely, and crucially, whether Mr. O'Mahoney had discharged the onus of rebutting the allegation of non-use of the trade mark during the specified period. The delegate also considered whether any circumstances prevented the use of the trade mark, which might excuse non-use under section 100(3)(c) of the *Trade Marks Act 1995*.

The delegate reasoned that under the current legislative framework, a removal applicant is not required to provide evidence to substantiate their claim of non-use at the outset; the onus rests on the registered owner to demonstrate use. Intencity's application was found to be properly made and timely, satisfying the requirements of the *Trade Marks Act 1995* and associated regulations. Mr. O'Mahoney failed to provide sufficient evidence of use of the trade mark on the specified goods during the relevant period, despite several opportunities and extensions being considered. Furthermore, the delegate found that the personal and health difficulties cited by Mr. O'Mahoney did not directly demonstrate circumstances that prevented the use of the trade mark during the critical three-year period, nor did they align with his assertion that the mark was in use.

Consequently, the delegate found that the removal application had succeeded. Trade mark number 565476 was directed to be removed from the Register of Trade Marks, and costs were awarded to Intencity Pty Ltd.