Opposition by Glenn William Davies to an application under section 92 of the Act by Seed Terminator Holdings Pty Ltd for removal of trade mark number 635379 (7) TERMINATOR - in the name of Glenn William Davies

This matter concerned an opposition by Glenn William Davies to an application by Seed Terminator Holdings Pty Ltd for the removal of trade mark number 635379, the word TERMINATOR, from the Register. The application for removal was made under section 92 of the Act. The decision was made by Nicholas Smith.

The legal issues before the court were whether the Opponent had established use of the trade mark TERMINATOR in Australia during the relevant period, as required by section 100 of the Act, and if not, whether the Registrar should exercise discretion under section 101(3) of the Act to allow the trade mark to remain on the Register.

The court found that while Mr Davies had used the mark "Davies Weed Terminator" (DWT Mark) in relation to the sale of goods, he had not established use of the word "Terminator" by itself as a trade mark during the relevant period. The evidence of use of "Terminator" was limited to an undated promotional pamphlet, which was not considered sufficiently convincing proof of use as a separate mark. The court determined that the DWT Mark operated as a single mark and that the word "Terminator" did not function independently. Although the Opponent may have a private commercial interest in maintaining the registration, the court concluded that the lack of use of the trade mark, and the potential impact on the integrity of the Register, meant that the public interest outweighed the Opponent's private commercial interest. Consequently, the court decided not to exercise its discretion to preserve the registration.

The court ordered that the Opponent had not established its opposition to removal, and the trade mark TERMINATOR should be removed from the Register in respect of all goods for which it was registered.