Manassen Foods Australia Pty Limited v Bespoke Foods Limited

Manassen Foods Australia Pty Limited, as the opponent, sought the removal of a trade mark registered by Bespoke Foods Limited from the Register of Trade Marks. The application for removal was made to the Registrar of Trade Marks, with the matter being heard by a delegate of the Registrar.

The primary legal issue before the delegate was whether the trade mark should be removed from the Register on the grounds of non-use, pursuant to section 92 of the relevant legislation. Specifically, the delegate had to consider whether the opponent had discharged the onus of establishing that the trade mark had not been genuinely used in Australia during the relevant period.

The delegate noted that section 100 of the Act places the onus on the removal opponent to establish use of the trade mark. To discharge this onus under section 94(4)(b), evidence of bona fide use during the non-use period, which ended on 6 February 2008, was required. In this instance, neither party appeared at the hearing, and the delegate was asked to determine the matter based on the evidence filed. The evidence included bar code verification reports, samples of artwork, and sample invoices for goods bearing the trade mark, dated August and September 2007. However, the provided text does not detail the delegate's specific findings on the sufficiency of this evidence to establish non-use or the final orders made.