Michelle Herbert and Paul Staunton v Jo Schmid

Michelle Herbert and Paul Staunton (the Applicants) sought the removal of a registered trade mark from the register under section 92(4)(a) of the *Trade Marks Act 1995* (Cth) on the grounds that they alleged the registered owner (the Opponent) did not intend to use the trade mark in good faith. The dispute concerned the Opponent's intention to use its registered trade mark for apparel. The matter was heard by Nicholas Smith, Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the court was whether the Opponent had demonstrated an intention to use the registered trade mark in good faith at the relevant date, as required by section 92(4)(a) of the Act. The Applicants contended that the Opponent's evidence of use was limited and that the apparel displayed a different logo, not the registered trade mark.

The Hearing Officer considered the onus of proof, noting that under section 100 of the Act, the onus rests on the Opponent. However, drawing on established case law, the Hearing Officer found that in applications for removal under section 92(4)(a), where the allegation concerns the applicant's state of mind regarding their intention to use a mark in good faith, the onus is not high. The Hearing Officer was satisfied that at the relevant date, the Opponent intended to authorise the use of the trade mark for the registered goods, thereby establishing its opposition to the removal application.

The Hearing Officer decided that the Opponent had successfully established its opposition to the removal of the trade mark. Consequently, costs were awarded against the Applicants in favour of the Opponent.