Nelson Conglomerate Pty Ltd v Cairns and Hinterland Hospital and Health Service

This matter concerned an application for the removal of a trade mark from the Register for non-use, brought by the Removal Applicant against the Opponent. The application was made under section 92(4)(b) of the *Trade Marks Act 1995* (Cth), alleging 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 during that period. The decision was made by Robert Wilson, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Opponent had provided sufficient evidence to rebut the presumption of non-use established by the Removal Applicant's application. Specifically, the court had to determine if the evidence filed by the Opponent, including a declaration and photographic images, demonstrated that the trade mark had been used in Australia in good faith during the relevant three-year period. A secondary issue arose concerning the admissibility of additional photographic images filed by the Opponent after the evidence-filing period had closed, which were identical to images already filed.

The delegate found that the Opponent had failed to provide adequate reasons for the late filing of the additional images, and in any event, these images were identical to those already filed and thus did not introduce new evidence. Crucially, the delegate concluded that the evidence filed by the Opponent did not satisfy him that it was reasonable to exercise discretion in favour of the Opponent, meaning the allegation of non-use was not rebutted. Consequently, the ground for removal was established.

The delegate ordered that the challenged trade mark be removed from the Register for all challenged goods, effective one month from the date of the decision, subject to any appeal. The delegate also awarded costs against the Opponent in favour of the Removal Applicant, applying the general rule that costs follow the event.