Lidl Stiftung & Co. KG v Conga Foods Pty Ltd

This matter concerned an application for removal of a trade mark from the Register due to non-use, brought by Conga Foods Pty Ltd (the Applicant) against Lidl Stiftung & Co. KG (the Opponent). The dispute arose because the Opponent had not used its trade mark in Australia during the relevant period. The hearing officer, Nicholas Smith, was tasked with determining whether the Opponent had established grounds to oppose the removal or if the Registrar should exercise discretion to allow the trade mark to remain on the Register.

The primary legal issues before the hearing officer were whether the Opponent had used the trade mark in Australia during the relevant period, or if there were obstacles to its use that would justify its continued registration. The Opponent also sought to rely on the Registrar's discretion under section 101(3) of the *Trade Marks Act 1995* (Cth) to prevent removal. A further issue was whether the Opponent had adequately particularised its grounds for opposition, particularly in relation to relying on obstacles to use under section 100(3)(c) of the Act.

The hearing officer found that the Opponent had conceded non-use of the trade mark in Australia during the relevant period. The Opponent's argument that an intention to use the mark constituted use, based on principles from *Moorgate Tobacco Co Ltd v Philip Morris Ltd*, was rejected as the facts were not analogous to cases where intention was supported by concrete steps towards trade. The hearing officer also determined that the Opponent had failed to properly particularise its grounds for opposing removal based on obstacles to use, and even if considered, the evidence did not establish that commercial circumstances in Australia constituted such obstacles. Consequently, the hearing officer declined to exercise his discretion to allow the trade mark to remain on the Register, noting the lack of actual use, residual reputation, or concrete plans for future use in Australia, and ordered that protection of the registration cease.