N/C Quest Inc. v Bioag Pty Ltd

This decision concerns an application by Bioag Pty Ltd (the Applicant) to remove a trade mark from the Register under section 92(4)(b) of the *Trade Marks Act 1995* (Cth). The application was made on the grounds that the trade mark had remained registered for a continuous period of three years ending one month before the application date, without use in Australia in good faith by the registered owner. The Opponent, N/C Quest Inc., a Canadian company, alleged that its Australian subsidiary, N/C Quest Pty Ltd (the Australian Company), had used the trade mark in Australia during the relevant period.

The primary legal issue before the Hearing Officer was whether the trade mark had been used in Australia in good faith by the registered owner, N/C Quest Inc., or by an authorised entity, during the three years preceding 27 July 2014. The Applicant contended that the Opponent had not used the trade mark in Australia during this period. The Opponent sought to rely on alleged use by the Australian Company, which was incorporated in 2008, to demonstrate use by the registered owner.

The Hearing Officer considered the evidence presented by both parties regarding the use of the trade mark. While the Opponent asserted that the Australian Company's use constituted use by the registered owner, the Hearing Officer was not persuaded that this was reasonable in the circumstances. The Hearing Officer ultimately declined to exercise discretion in the Opponent's favour.

Consequently, the Hearing Officer ordered the removal of the trade mark from the Register in respect of all class 44 services. For class 1 goods, the registration was limited to "fuel additives, namely oxidizing agents". The Applicant, as the successful party, was awarded costs.