Michael John Pawlyshyn v Novatech SA

This matter concerns an opposition to the removal of a trade mark, brought by Michael John Pawlyshyn against Novatech SA. The proceedings were heard by Claudia Murray, acting as a delegate of the Registrar. The dispute involved the admissibility of further evidence filed by Mr Pawlyshyn and the interpretation of the term "good faith" under section 92 of the relevant Act.

The primary legal issue before the delegate was to determine whether the evidence filed by Mr Pawlyshyn, particularly his further statutory declaration, should be admitted. A secondary, but central, issue was the meaning of "good faith" as it pertains to section 92 of the Act, specifically in the context of an application for trade mark registration where the applicant may have gained knowledge of the mark through employment with the owner of an unregistered mark, potentially indicating a breach of fiduciary duty.

The delegate considered submissions from both parties regarding the admissibility of Mr Pawlyshyn's further evidence, ultimately deciding to allow its inclusion. In addressing the interpretation of "good faith," the delegate referred to observations made by the Full Federal Court in *Liquideng Farm Supplies Pty Ltd v Liquid Engineering 2003 Pty Ltd*. The delegate noted that the Full Federal Court had previously held that "good faith" under section 92(4) requires no more than a genuine intent to use the mark for commercial purposes, as opposed to token use or use for an ulterior purpose. This interpretation does not necessitate an element of subjective honesty or good intention.