Jolly Swagman Pty Ltd v the Waltzing Matilda Centre Limited

Jolly Swagmen Pty Ltd opposed applications by The Waltzing Matilda Centre Limited to remove two registered trade marks, numbers 218783 and 228232, from the Register of Trade Marks. Both registrations are for the words "waltzing matilda," with trade mark 218783 covering goods in class 32 (beverages) and trade mark 228232 covering wines, spirits, and liqueurs. The Waltzing Matilda Centre sought removal on the grounds of non-use, alleging that the original applicants for registration lacked a bona fide intention to use the marks and that the registered owners had not used them in Australia during the relevant periods. Jolly Swagmen, the current registered owner, contested these applications. The decision was made by the Registrar of Trade Marks.

The primary legal issue before the Registrar was whether The Waltzing Matilda Centre qualified as a "person aggrieved" under section 92 of the *Trade Marks Act 1995* (Cth) to bring applications for the removal of the trade marks from the Register. Jolly Swagmen also raised several grounds of opposition, including that the removal applicant had not fulfilled the burden of proof required by section 92(4), that the trade marks were originally applied for and subsequently purchased with a bona fide intention of use, that the marks had been used by or on behalf of Jolly Swagmen, and that any non-use was due to circumstances beyond control.

The Registrar reasoned that to be considered a "person aggrieved" under section 92, an applicant must demonstrate that they would be appreciably disadvantaged in a legal or practical sense by the register remaining unrectified. The Registrar noted that The Waltzing Matilda Centre had provided no evidence to support its claim of being aggrieved, relying only on a bald statement. The Registrar found that the Centre's mere interest in the restaurant and retail trade was insufficient to establish standing, referencing case law such as *Woolly Bull Enterprises Pty Ltd v Reynolds* and *The Ritz Hotel Ltd*. As The Waltzing Matilda Centre failed to establish its standing as a person aggrieved, its applications for removal were dismissed at the threshold.

Consequently, the Registrar refused both removal applications. In accordance with section 221 of the *Trade Marks Act 1995*, the Registrar ordered The Waltzing Matilda Centre to pay Jolly Swagmen's costs, with the amount to be determined according to a specified formula due to the evidence not being prepared separately for each mark.