Kraft General Foods, Inc v Gaines Pet Foods Corporation

Kraft General Foods, Inc. (the applicant) sought the removal of three trade mark registrations held by Gaines Pet Foods Corporation (the opponent) from the Register of Trade Marks. The applications were made under section 23 of the relevant Act, concerning the period of non-use between 23 May 1986 and 23 May 1989. The dispute centred on whether the applicant had established a prima facie case of non-use and whether the applicant qualified as a "person aggrieved" entitled to seek removal.

The primary legal issues before the delegate were whether the applicant was a "person aggrieved" within the meaning of section 23, and whether the applicant had discharged the onus of proving non-use of the trade marks in Australia during the specified period. The opponent also argued that even if these criteria were met, the delegate retained a discretion to refuse removal, particularly given that the non-use was allegedly due to contractual obligations imposed by the applicant itself.

The delegate reasoned that the applicant had not established itself as a "person aggrieved," finding that the lodgement of trade mark applications for the same marks, without further demonstration of practical or legal disadvantage, was insufficient. Furthermore, the delegate found that the applicant had failed to discharge the onus of proving non-use, as the evidence, particularly the Kurland declaration, was deficient in establishing the declarant's bona fides and the scope of the investigation. The delegate also considered that the non-use was likely a result of a "non-compete" clause in an Asset Purchase and Sale Agreement between the parties, which the applicant had itself contrived, thus disentitling it from complaining of the situation.

Consequently, the delegate dismissed the applications for removal. The delegate found that the applicant was not a person aggrieved and had not discharged the onus of proving non-use. Alternatively, even if the applicant had met these thresholds, the delegate exercised discretion to refuse removal, citing the public interest in upholding contractual obligations and the potential for the applicant's own actions to create a disadvantage if the marks were removed.