Interactive Engineering Pty Ltd v Google LLC

Interactive Engineering Pty Ltd (the Opponent) sought the complete removal of Google LLC's (the Applicant's) trade mark registration no. 539355 from the Register under section 92(4)(b) of the *Trade Marks Act 1995* (Cth) for non-use. The application for removal related to a broad range of goods. The court was required to determine whether the Applicant had used the trade mark in Australia in good faith in relation to the goods for which removal was sought during the relevant three-year period from 14 January 2019 to 14 January 2022.

The court considered the legal framework for removal of trade marks for non-use, specifically section 92(4)(b) of the Act, which requires the registered owner to demonstrate use in Australia in good faith during the relevant period. The onus was on the Opponent to rebut the allegation of non-use by establishing, on the balance of probabilities, that the trade mark had been used in relation to any or all of the goods in question, or that circumstances prevented such use. The court noted that "use in good faith" means real, as opposed to token, use in a commercial sense, and a single bona fide use can be sufficient if overwhelmingly proven.

In its decision, the court found that the Opponent had partially established its opposition. While the Opponent did not press for the retention of certain goods (referred to as the "Removed Goods"), the court exercised its discretion to retain the broader claim in respect of a subset of goods for which use in good faith was established. Consequently, the court directed that registration 539355 be amended to remove the Removed Goods one month from the date of the decision, unless an appeal was filed. The court also awarded costs against the Applicant.