Nature's Remedy Australia Pty Ltd v Nature's Remedy Pty Ltd

This matter concerned an opposition by Nature's Remedy Australia Pty Ltd (the opponent) to an application by Nature's Remedy Pty Ltd (the applicant) to remove trade mark registration number 1890 from the Register of Trade Marks. The registered mark, in class 5, was for an ointment, cream, balm or salve including those containing flower extracts, or an oral preparation for relieving stress or tension, for human use. The applicant sought removal of the registration for all goods except "pain release (sic) cream for arthritis". The opposition was heard by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the opponent had established use of the trade mark in Australia during the relevant period, as required by the *Trade Marks Act 1995*. Specifically, the delegate had to determine if the opponent had rebutted the applicant's allegations of non-use under paragraphs 92(4)(a) and (b) of the Act, which required the opponent to demonstrate use of the mark in good faith in relation to the registered goods. The delegate also considered whether any alterations to the mark substantially affected its identity and whether any circumstances prevented the use of the mark.

The delegate reasoned that the onus rested on the opponent to prove use of the trade mark. While the opponent provided evidence of sales and advertising for a "pain relief cream" or "first aid cream" during the relevant period, and acknowledged that the applicant conceded use in relation to this product, the evidence regarding the use of the mark on oral preparations for stress or tension was found to be deficient. The delegate noted that the opponent's evidence concerning "anti-stress drops" and "tension relieving drops" lacked specific dates of sale after the critical date and did not provide actual sales evidence. Furthermore, the delegate found that the reasons for the temporary removal of this product from the market due to leakage problems, and the subsequent delays in reintroduction, did not fall within the scope of circumstances contemplated by section 100(3)(c) of the Act as an obstacle to use. The delegate concluded that the opponent had failed to substantiate its claim of use in relation to all the goods covered by the registration.

Consequently, the delegate ordered that trade mark registration number 1890 be removed from the Register of Trade Marks for all goods except "pain relief cream for human use". The delegate also directed that each party bear its own costs, as the applicant's removal action was only partly successful.