Noshu Foods Pty Ltd v Torquay Beverage Company Pty Ltd

Noshu Foods Pty Ltd, as the opponent, and Torquay Beverage Company Pty Ltd, as the applicant, were parties to a proceeding before a delegate of the Registrar of Trade Marks. The dispute concerned an application filed by Torquay Beverage Company Pty Ltd for the partial removal of Noshu Foods Pty Ltd's registered trade mark "NOSHU" from the Australian Register of Trade Marks. This application was based on allegations of non-use of the trade mark.

The primary legal issue before the delegate was whether the trade mark "NOSHU" had been used in Australia in good faith by the opponent during the three-year period ending on 11 October 2020, in relation to the goods and services for which it was registered, excluding certain undisputed goods. The delegate was required to determine if the grounds for removal under section 92(4)(b) of the Trade Marks Act 1995 (Cth) were established and, if so, whether it was reasonable to remove the trade mark from the Register, either wholly or partially. The standard of proof applied was the ordinary civil standard based on the balance of probabilities.

The delegate considered the evidence filed by both parties, including evidence in support, evidence in answer, and evidence in reply, as well as late evidence filed by the opponent. The delegate noted that the opponent bore the burden of rebutting the non-use allegation. The delegate also addressed the opponent's attempt to protect confidential information, stating that while confidentiality would be respected, some discussion of information might be unavoidable to provide adequate reasons for the decision, with broad statements being used to minimise commercial risk. The delegate proceeded on the basis that section 92(4)(a) of the Act merged with section 92(4)(b) for trade marks registered for more than five years, meaning the matter would be considered under section 92(4)(b).