Opposition by Dajin Pei and World United Group Pty Ltd to an application under section 92 of the Trade Marks Act 1995 (Cth) by Comite International Olympique for removal of trade mark number 954703 (41) – WORLDEDU...

This matter concerned an application by Comite International Olympique for the removal of trade mark number 954703 from the Register under section 92 of the *Trade Marks Act 1995* (Cth). The opposition to this removal was brought by Dajin Pei and World United Group Pty Ltd. The decision was made by Nicholas Smith, a Hearing Officer.

The primary legal issue before the Hearing Officer was whether the Opponent had established use of the trade mark in relation to the registered services during the relevant period, or if there were circumstances constituting an obstacle to such use, as required by section 100 of the Act. As the trade mark had been registered for more than five years, the Hearing Officer considered the application for removal under section 92(4)(b) of the Act.

The Hearing Officer reasoned that the burden of proof lay with the Opponent to demonstrate use of the trade mark. The evidence presented by the Opponent, including undated educational materials and domain name registrations, was found to be insufficient to establish use of the trade mark as a badge of origin for the registered services. Expert evidence from the Applicant's investigator confirmed an inability to find any use of the trade mark during the relevant period. The Hearing Officer found no basis to exercise discretion not to remove the trade mark. Accordingly, the Hearing Officer ordered that registration 954703 be removed from the Register and awarded costs to the Applicant.