Nhon Hoa Nguyen v Aardwolf Australia Pty Ltd

This matter concerned an application by Nhon Hoa Nguyen (the Opponent) to register the trade mark AARDWOLF and a logo, which was opposed by Aardwolf Australia Pty Ltd (the Applicant). The dispute centred on the Applicant's claim to have abandoned its rights in the AARDWOLF trade mark and logo through non-use and intention to abandon. The court was required to determine whether the Applicant had abandoned its rights in the trade mark and logo.

The court considered whether Herdgraph, the original registrant of the AARDWOLF trade mark, had abandoned its rights by ceasing to trade and by its intention to allow Aardwolf Pty Ltd to use the mark. It also examined whether Aardwolf Pty Ltd had abandoned its rights in the mark by ceasing to trade and by the intention of James Corbett to transfer those rights to Aardwolf LLC. The central question was whether the actions and intentions of the relevant parties demonstrated an intention to abandon the trade mark and logo, thereby allowing the Opponent to succeed in their opposition.

The court found that Herdgraph had registered the AARDWOLF trade mark in 2003 and that this registration was used solely by Aardwolf Pty Ltd, not Herdgraph. James Corbett declared that Herdgraph had no interest in using the brand and abandoned its registrations. Aardwolf Pty Ltd subsequently ceased trading in May 2007, and James Corbett intended to abandon any rights Aardwolf Pty Ltd had accrued in the AARDWOLF sign and logo, with the intention for these rights to be adopted by Aardwolf LLC. The court accepted that there was an intention to abandon the rights associated with the AARDWOLF trade mark and logo by both Herdgraph and Aardwolf Pty Ltd.