Kahn-Allen Pty Ltd v Weatherbeeta Pty Ltd

Kahn-Allen Pty Ltd opposed an application by Weatherbeeta Pty Ltd to remove trade mark number 73983 (18), registered as "A TRUE TO LABEL GENUINE WIENEKE JACK WIENEKE (Fancy)", from the Register of Trade Marks. The application for removal was made under section 92 of the *Trade Marks Act 1995* (Cth). The matter was heard by Nicholas Smith, Hearing Officer, Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether the Opponent, Kahn-Allen Pty Ltd, had used the trade mark in Australia in respect of the Applicant's goods during the relevant period, which would be a defence to the application for removal.

The Hearing Officer found that Kahn-Allen Pty Ltd had indeed used the trade mark in Australia in respect of the Applicant's goods during the relevant period. Consequently, the Hearing Officer was satisfied that the opposition to the removal of the trade mark was established. The Hearing Officer refused to remove the trade mark from the Register.

Regarding costs, the Hearing Officer noted that while the Opponent was successful in its opposition, it had not paid the required fee to attend the hearing and had sought a delay based on difficulties engaging with its solicitors. Despite having sympathy for the Opponent's difficulties, the Hearing Officer determined that the Opponent's conduct had caused the Applicant to incur unwarranted costs. Therefore, no award of costs was made in favour of the Opponent.