Julie Anne Martin v The Tasmanian Walking Co. Pty. Ltd

This matter concerned an opposition to the removal of a registered trade mark, brought by Julie Anne Martin (the Applicant) against The Tasmanian Walking Co. Pty. Ltd (the Opponent). The dispute arose from the Opponent's claim that the Applicant had not used its registered trade mark, "Three Capes Eco Lodge," in relation to certain goods and services. The hearing was conducted before Mary-Ann Cooper, a delegate of the Registrar, in Canberra.

The legal issues before the court were whether the Applicant had demonstrated a good faith intention to use, or actual use of, the trade mark "Three Capes" in relation to the specified goods and services during the relevant period. The Applicant also contended that it was reasonable to exercise discretion not to remove the trade mark from the register for those goods and services where use had not been demonstrated.

The Applicant argued that she had used the trade mark "Three Capes Eco Lodge" for accommodation, tours, and recreational activities since 2010. She explained that the decision to register "Three Capes" alone was a business recommendation, and she provided evidence of licensing agreements and inquiries with the Tasmanian government to demonstrate her intention to use the mark broadly. The Opponent, however, presented evidence from Google searches and website analysis that did not reveal use of the trade mark "Three Capes" or "Three Capes Eco Lodge" for the claimed goods and services, other than limited advertising of accommodation under the earlier mark.

Ultimately, the Hearing Officer found that the Opponent had failed to satisfy her that the discretion should be exercised in its favour to remove the trade mark. While acknowledging the Applicant's claims of intention and some use, the Hearing Officer was not satisfied that it was reasonable to exercise the discretion not to remove the trade mark for all goods and services where use had not been demonstrated. Consequently, the Hearing Officer directed that the trade mark be removed from the Register for all goods and services except for those in Classes 29, 30, 32, 35, and 43 for which use had been demonstrated. No orders were made regarding costs, as both parties had been partially successful.