Opposition by Australian Chiropractors Association Limited to an application under section 92 of the Trade Marks Act 1995 (Cth) by Chiro Care Mattresses Pty Ltd for removal of trade mark number 427635 (class 20) –...

The Australian Trade Marks Office considered an opposition by the Australian Chiropractors Association Limited against an application by Chiro Care Mattresses Pty Ltd to remove trade mark number 427635 from the Register of Trade Marks in Class 20. The application for removal was based on allegations of non-use of the trade mark.

The primary legal issue before the Office was whether the trade mark had been used in Australia in relation to the goods for which it was registered during the relevant period. Specifically, the Office had to determine if the use demonstrated by the applicant, Chiro Care Mattresses Pty Ltd, constituted genuine use of the trade mark as registered, or if the term "chiro" had become a descriptive or generic term for mattresses with chiropractic benefits, thereby impacting the registrability and enforceability of the trade mark.

The Office found that while there had been use of the trade mark in relation to mattresses and mattress/base ensembles, this use was often in conjunction with other descriptive words, forming part of a "Chiropractic Collection" or "Chiro Collection." The Office considered evidence suggesting that "chiro" is commonly used as a prefix in the mattress industry to denote chiropractic benefits, and that other trade marks incorporating "chiro" were registered for similar goods. Consequently, the Office determined that the trade mark should remain on the Register, but its specification of goods should be restricted to reflect the actual use and the descriptive nature of the term "chiro" in this context.

In light of the partial success of both parties, the Office ordered that each party bear its own costs.