Kerrie Boylett v Jan Scherrer

This matter concerned applications for the removal of two trade marks, registration numbers 262202 and 965450, from the Register of Trade Marks due to non-use. The applications were brought by Jan Scherrer (the applicant for removal) against Kerrie Boylett (the opponent and registered owner of the trade marks). The hearing was conducted by Bianca Irgang, a delegate of the Registrar of Trade Marks, in Sydney on 20 October 2011.

The primary legal issues before the delegate were whether the trade marks had not been used in Australia for a continuous period of three years ending one month before the filing of the non-use applications, or whether the original applicant for registration had no intention in good faith to use the trade marks in Australia at the time of filing the applications. The delegate was required to determine if the opponent had provided sufficient evidence to rebut these allegations of non-use or lack of intention to use, as stipulated by sections 92, 96, 100, and 101 of the *Trade Marks Act* and relevant Regulations.

The delegate found that the opponent had failed to rebut the allegations of non-use for both trade mark registrations. Specifically, the delegate was not satisfied that trade mark registration 965450 had been used in the relevant period for the Class 25 goods in its specification. Consequently, the delegate directed that both trade mark registration 262202 be removed from the register in respect of all goods to which it applied, and trade mark registration 965450 be removed for the Class 25 goods, one month from the date of the decision. The delegate also awarded costs against Kerrie Boylett at the official scale, having been successful in the non-use applications. The removal of the trade marks was made subject to any appeal proceedings.