Mind Your Own Property Pty Ltd v MYOB Technology Pty Ltd

This matter concerned an opposition to the removal of a registered trade mark from the Register. The Opponent, Mind Your Own Property Pty Ltd, sought to prevent the removal of its trade mark, arguing it had used the mark in relation to property management software services. The Applicant, MYOB Technology Pty Ltd, sought the removal of the trade mark on the grounds of non-use. The decision was made by Nicholas Smith, Hearing Officer.

The central legal issue before the Hearing Officer was whether the Opponent had established use of the trade mark in the relevant period, either through actual use or circumstances constituting an obstacle to use, as required by section 100 of the *Trade Marks Act 1995* (Cth). If use could not be established, the Hearing Officer also had to consider whether to exercise discretion under section 101(3) of the Act to allow the trade mark to remain on the Register despite the lack of use.

The Hearing Officer found that the Opponent had failed to establish use of the trade mark. While the Opponent had invested in software development and used the trade mark in preliminary discussions with a software developer, these actions were considered to be merely preparatory and did not demonstrate an objective commitment to supplying the registered services under the trade mark. The software was ultimately released under a different brand name, "Rentify," and the Opponent's intention to use the trade mark was conditional on the success of that initial launch, which did not constitute an objective commitment. Consequently, the Hearing Officer declined to exercise discretion under section 101(3), finding that the Opponent's limited private commercial interest was insufficient to outweigh the public interest in the integrity of the Register and the lack of any established reputation in the trade mark.

Accordingly, the Hearing Officer directed that the trade mark be removed from the Register in respect of all services for which it was registered, one month from the date of the decision, with provisions for a stay in the event of an appeal. Costs were awarded against the Opponent in favour of the Applicant.