Myerton Pty Ltd v Foreign Supplement Trademark Ltd

This matter concerned an opposition by Myerton Pty Ltd (the opponent) to applications for removal of its trade marks EVERSLIM from the Register of Trade Marks, brought by Foreign Supplement Trademark Ltd (the applicant). The proceedings were heard by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the opponent had discharged the onus of demonstrating that the trade marks had been used in Australia. The applicant sought removal of the registrations on the grounds that the trade marks had not been used in relation to the goods for which they were registered.

The delegate considered evidence from the opponent's Managing Director, which indicated that sales of the EVERSLIM product had ceased after 1990 and that the opponent had undertaken steps in 2003 and 2004 to reintroduce the product, including obtaining quotes, producing marketing materials, and making presentations to retailers. However, the delegate also considered evidence from an investigator who stated that the opponent's Office Manager had allegedly informed him that the product had not been manufactured for seven years and that the trade mark had been sold to a third party. The delegate found that the opponent had not discharged the onus of showing use of the trade marks.

Consequently, the delegate decided to remove the relevant EVERSLIM registrations from the Register of Trade Marks in respect of all goods for which they were registered. The opponent was ordered to pay the applicant's costs.