Mathew O'Reilly v RenewGen Pty Ltd

In *Mathew O'Reilly v RenewGen Pty Ltd*, heard before Nicholas Smith J in the Federal Court of Australia, the applicant sought the removal of a registered trade mark from the Register. The respondent, RenewGen Pty Ltd, was the registered owner of the trade mark. The grounds for removal were based on non-use of the trade mark for certain goods for which it was registered, pursuant to section 92(4)(b) of the *Trade Marks Act 1995* (Cth).

The central legal issue before the Court was whether the respondent had made genuine use of the trade mark in Australia during the relevant period for all the goods for which it was registered. If not, the Court was required to consider whether the Registrar's discretion to allow the trade mark to remain on the Register for some or all of those goods should be exercised in favour of the respondent.

Nicholas Smith J reasoned that the evidence presented by the applicant demonstrated that the respondent had indeed used the trade mark during the relevant period, but only for a subset of the goods for which it was registered. His Honour found that the evidence did not establish use for the remaining goods. Consequently, the Court determined that it was not appropriate to exercise the Registrar's discretion to permit the trade mark to remain on the Register for those goods for which no use had been proven. The Court ordered that the trade mark be removed from the Register in respect of those specific goods.