Opposition by Estate Agents Co-operative Limited to application by Shadow Holdings (Vic) Pty Ltd for removal of trade mark 615235 (36) – MULTILIST - in the name of Estate Agents Co-operative Limited

This matter concerned an opposition by Estate Agents Co-operative Limited (the Opponent) to an application by Shadow Holdings (Vic) Pty Ltd (the Applicant) for the removal of trade mark 615235, MULTILIST, from the Register. The application for removal was brought pursuant to section 92(4)(b) of the *Trade Marks Act 1995* (Cth), alleging non-use of the trade mark during the relevant period. The decision was made by Robert Wilson.

The primary legal issue before the court was whether the Opponent had proven use of the trade mark MULTILIST in relation to the services for which it was registered during the relevant period. The Applicant contended that no use had been demonstrated, and consequently, the grounds for removal under section 92(4)(b) were established. The court was required to determine if the evidence adduced by the Opponent was sufficient to discharge its burden of proof under section 100 of the Act, and if not, whether to exercise its discretion under section 101 to remove the trade mark from the Register.

The court found that the Opponent's evidence had significant shortcomings. Exhibits submitted by the Opponent were found to be irrelevant, lacked evidence of provenance or content, and did not demonstrate use of the trade mark in relation to the services in question. Exhibits dated outside the relevant period were not supported by documentary evidence of their use within that period. Specifically, Exhibit B, published by NSW Fair Trading, could not establish use by the Opponent as there was no evidence that NSW Fair Trading was an authorised user of the trade mark. Consequently, the court concluded that the Opponent had failed to discharge its burden of proving use of the trade mark during the relevant period.

As the Opponent had failed to prove use, the court determined that the grounds for removal were established. The court exercised its discretion under section 101 of the *Trade Marks Act 1995* and ordered that the trade mark MULTILIST be removed from the Register. The Applicant was awarded costs against the Opponent.