Opposition by Almma Holdings Pty Ltd to application under section 92 of the Trade Marks Act 1995 (Cth) by Suree Interfoods Co Ltd to remove trade mark number 1555063 (29) – AKETHAI and device - in the name of Almma Holdings Pty Ltd

This matter concerned an application by Suree Interfoods Co Ltd (the Removal Applicant) under section 92 of the *Trade Marks Act 1995* (Cth) to remove trade mark number 1555063, AKETHAI and device, from the Register. Almma Holdings Pty Ltd (the Removal Opponent) opposed this application. The proceedings were heard by Louise Tuohy, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Removal Opponent had used the trade mark AKETHAI and device in Australia in good faith during the continuous three-year period ending one month before the filing of the removal application, as required by section 92(4)(b) of the Act. The Removal Opponent bore the onus of rebutting the allegation of non-use.

The delegate applied the legal framework concerning the removal of trade marks for non-use, specifically section 92(4)(b) and the onus of proof under section 100(1). The delegate referred to the established meaning of "use in good faith" as real, commercial use, not merely token use, and noted that a single bona fide use could be sufficient to rebut an allegation of non-use, provided it was established with convincing proof. The delegate was satisfied, on the balance of probabilities, that the Removal Opponent had made genuine commercial use of the trade mark in Australia during the relevant period, notwithstanding that the goods were sourced from Thailand.

Consequently, the delegate decided that the Removal Opponent had successfully rebutted the allegation of non-use and directed that trade mark registration 1555063 remain on the Register. Costs were awarded against the Removal Applicant.