Jabsons Foods Pvt Ltd v GS Pacific Marketing (Aust) Pty Ltd

This matter concerned an application by GS Pacific Marketing (Aust) Pty Ltd (the Removal Applicant) to remove from the Register of Trade Marks the mark JABSONS, registered by Jabsons Foods Pvt Ltd (the Removal Opponent). The Removal Opponent opposed the removal. The decision was made by Blake Knowles, a Hearing Officer acting as a delegate of the Registrar of Trade Marks, based on written submissions and declarations filed by both parties.

The primary legal issue before the Hearing Officer was whether the Removal Applicant had established grounds for the removal of the JABSONS trade mark from the Register under section 92(4)(a) of the *Trade Marks Act 1995* (Cth), which relates to non-use of the trade mark. The Removal Opponent sought to oppose this removal, arguing for the continued registration of the mark.

The Hearing Officer considered evidence of use by both parties. The Removal Opponent provided evidence of importing, distributing, and selling various food products, predominantly of Indian origin, under the JABSONS trade mark in Australia since 2010. This included rice, rice flour, rice flakes, bhel mix, rice papadums, and rice fryum, with invoices dating from 2012 to 2020. The Removal Applicant, on the other hand, presented evidence of using the JABSONS brand since 2005 and exporting goods to Australia under this brand since 2009. However, the Hearing Officer found that the ground for removal under s 92(4)(a) was not established for certain goods.

Ultimately, the Hearing Officer determined that the Removal Opponent had established grounds of opposition in relation to specific goods. The discretion was exercised to allow the trade mark to remain registered for goods supplied by Alvand Fine Foods Pty Ltd. Consequently, the trade mark was ordered to be removed from the Register for Class 29 and 31 in their entirety, and for Class 30 for all goods except rice, rice flour, rice flakes, bhel mix, rice papadums, rice fryum, and rice crackers. The removal was stayed for at least one month to allow for any potential appeal. Given that both parties had achieved a measure of success, they were ordered to bear their own costs.