Jaimon Thomas v Monsoon Group Australia Pty Ltd

This matter concerned two non-use applications brought by Jaimon Thomas (the Applicant) against Monsoon Group Australia Pty Ltd (the Opponent) concerning registered trade marks. The applications sought the removal of the trade marks from the Register on the grounds of non-use. The delegate of the Registrar of Trade Marks heard the matter.

The primary legal issues before the court were whether the Opponent had made good faith use of the registered trade marks in Australia during the relevant periods, or alternatively, whether the Opponent had a good faith intention to use the trade marks in Australia on the relevant dates. Specifically, for one trade mark, the court had to consider the ground of non-use under section 92(4)(b) of the Act, requiring proof of use in the three years preceding the application. For the other trade mark, the court had to consider whether the Opponent had a good faith intention to use the mark on a specific relevant date, or had used it in Australia in the period leading up to the application.

The court's reasoning focused on the onus of proof, which rested on the Opponent to rebut the allegations of non-use. The delegate considered the evidence filed by both parties, including evidence in support, evidence in answer, and evidence in reply. The court noted that section 101(3) of the Act allowed the Registrar to decline removal even if a ground for non-use was established, if it was reasonable to do so. The delegate applied the relevant provisions of the Act concerning the periods for establishing use and the requirement for good faith intention.

The delegate determined that the Opponent bore the onus of rebutting the non-use allegations. The court considered the specific grounds raised under section 92 of the Act for each trade mark, including the requirement to demonstrate good faith use or intention to use the marks in Australia during the prescribed periods. The delegate would then make a determination based on the evidence and submissions presented.