Li Ma v Chowbus Inc

This matter concerned an application by Chowbus Inc (the Removal Applicant) to remove the trade mark registration number 2098412 from the Register, held by Li Ma (the Removal Opponent). The Removal Applicant sought removal under section 96 of the *Trade Marks Act 1995* (Cth), alleging that the trade mark had not been used in good faith, nor had the registered owner intended to use it, authorise its use, or assign it to a corporation. The Removal Applicant contended that the Removal Opponent had no intention to use the trade mark in good faith or authorise its use.

The primary legal issue before the Hearing Officer was whether the Removal Applicant had established grounds for the removal of the trade mark from the Register under section 92(4)(a) of the *Trade Marks Act 1995* (Cth). This section permits removal if the applicant proves that the registered owner had no intention to use the trade mark in good faith, or to authorise its use, or to assign it to a corporation, and that there has been no use of the trade mark in good faith by the registered owner. The Removal Applicant also sought an award of costs.

The Hearing Officer found that the Removal Applicant had provided substantial evidence of its own extensive use of the "chowbus" mark for a food delivery platform in the United States since 2016, with a download in Australia occurring in March 2016. Crucially, the Removal Applicant demonstrated concrete steps towards entering the Australian market, including registering a subsidiary, employing staff, and entering into contracts with Australian restaurants from June 2020. The Removal Opponent, however, provided no evidence of use of the trade mark in Australia, nor did it present any argument for the exercise of discretion not to remove the mark from the Register.

Accordingly, the Hearing Officer directed that the registration number 2098412 be removed from the Register in respect of all registered goods and services within one month of the decision. The Hearing Officer also awarded costs to the Removal Applicant.