Liberty Electronic USA Inc v Interface Management Services Pty Ltd

Liberty Electronic USA Inc (the applicant) sought to remove Interface Management Services Pty Ltd (the respondent) as the registered proprietor of a trade mark. The applicant alleged that the respondent had not used the trade mark in Australia for a continuous period of three years. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had established a prima facie case of non-use of the trade mark by the respondent, thereby shifting the onus to the respondent to prove use.

The Court considered evidence from private investigators regarding the respondent's premises and market activity. While acknowledging some shortcomings in this evidence, the Court found that it was sufficient to raise a prima facie case of non-use. The Court referred to established authorities, including the principles articulated by Windeyer J, which support the proposition that limited evidence of non-use can establish a prima facie case requiring the registered proprietor to demonstrate actual use of the trade mark.