Opposition by FreshFood Holdings Pte Limited to application pursuant to section 96 of the Trade Marks Act 1995 (Cth) by Pablo Enterprise Pte. Ltd. to remove trade mark number 170010 (class 30) – Pablo (Word) - in...

This matter concerned an application by Pablo Enterprise Pte. Ltd. (the Removal Applicant) to remove trade mark number 170010, registered in class 30 and comprising the word mark "Pablo", from the Register. FreshFood Holdings Pte Limited (the Removal Opponent) opposed this application. The decision was made by Hearing Officer Kate Doherty.

The primary legal issue before the Hearing Officer was whether the Removal Applicant had established grounds for the removal of the trade mark pursuant to sections 92(4)(a) and (b) of the *Trade Marks Act 1995* (Cth). This involved determining whether the trade mark had been genuinely used in Australia in relation to the registered goods during the relevant period, and if not, whether there were any proper reasons for non-use that would justify the Registrar exercising discretion to retain the mark on the Register.

The Hearing Officer found that the Removal Opponent had failed to discharge the onus of proof to demonstrate use of the trade mark during the relevant period. The evidence presented showed an "absolute paucity" of use, with no evidence of use on the registered goods for the first 58 years of registration and until after the relevant period. Consequently, the Hearing Officer declined to exercise the discretion under section 101(3) of the Act to allow the trade mark to remain on the Register.

The application for removal was successful. Trade Mark Registration Number 170010 was directed to be removed from the Register one month from the date of the decision, subject to any notice of appeal. The Removal Applicant was awarded costs against the Removal Opponent.