Kevin John Mansfield v Rembrandt Suits Ltd

This matter concerned an application by Kevin John Mansfield (the applicant) to remove a trade mark registration held by Rembrandt Suits Ltd (the opponent) from the Register on the grounds of non-use. The sole contentious issue was whether the opponent had satisfied the requirements of section 92(4)(b) of the *Trade Marks Act 1995* (Cth), which pertains to the use of a trade mark during a specified period.

The court was required to determine whether the opponent had rebutted the allegation that the trade mark had not been used, or used in good faith, during the three years preceding one month before the filing of the opposed application. This involved assessing whether the evidence presented by the opponent established genuine commercial use of the trade mark in relation to the registered goods and services, in accordance with the established legal tests for trade mark use.

The Hearing Officer, Jock McDonagh, considered the evidence provided by the applicant, which consisted of declarations and exhibits. The Hearing Officer noted that mere assertions of use without documentary support are generally given little weight. While the applicant claimed continuous and consistent use by a licensee, the exhibits provided lacked specific dates of sale, distribution, or promotion, and some did not relate to the goods covered by the registration. The Hearing Officer found that the evidence did not provide overwhelmingly convincing proof of use, particularly in relation to a single act of use.

Consequently, the Hearing Officer found that the opponent had not discharged the onus placed upon them to show why the trade mark registration should not be removed from the Register for non-use. The opposition was dismissed, and the registration was directed to be removed from the Register, with provisions for a stay pending any appeal. The opponent was ordered to pay the applicant's costs.