Jason Davidson v Daisy Holding Company Pty Ltd

This matter concerned an opposition to the removal of a trade mark from the Register, brought by Jason Davidson (the Opponent) against Daisy Holding Company Pty Ltd. The dispute centred on whether the trade mark had been used during a relevant period, and if not, whether the Registrar should exercise discretion to allow it to remain on the Register.

The court was required to determine whether the Opponent had established use of the trade mark in relation to certain goods and services, and if not, whether it was reasonable to allow the trade mark to remain on the Register despite the lack of use. Specifically, the court had to consider the evidence presented by the Opponent regarding the adoption and use of the name "FIGJAM" and its derivation into the trade mark, as well as the specific goods and services for which removal was sought.

The court considered the evidence of use, noting that much of the material was undated and therefore of limited probative weight. While the Opponent claimed confidentiality over his declaration, the court proceeded with a degree of circumspection. The court found that the Opponent had established his opposition to the removal of the trade mark in relation to services in Class 43. However, for goods in Classes 16, 29, 30, 32, and 33, and services in Class 41, the court determined that it was not reasonable to exercise the Registrar's discretion to allow the trade mark to remain on the Register.

Consequently, the court directed that, unless an appeal was notified, the trade mark would be removed from the Register for the specified goods and services one month from the date of the decision. In relation to costs, the court made no award, finding that both parties had achieved a modicum of success.