Opposition by Kevin Francis Darley to application under section 92 of the Trade Marks Act 1995 (Cth) by Godolphin Management Co. Limited to remove trade mark number 1543379 (class 41) - DARLEY - in the name of...

This matter concerned an application by Godolphin Management Co. Limited (the Removal Applicant) to remove trade mark number 1543379, DARLEY, from the Register under section 92 of the *Trade Marks Act 1995* (Cth). Kevin Francis Darley (the Removal Opponent) opposed this removal. The proceedings were heard by Timothy Brown, a Hearing Officer.

The central legal issue was whether the Removal Opponent had established that the trade mark had remained registered for a continuous period of three years ending one month before the filing of the removal application, during which time the registered owner had not used the trade mark in Australia in good faith in relation to the services for which it was registered. The court was required to determine if the evidence presented by the Removal Opponent sufficiently demonstrated use of the trade mark within the relevant period, or if there were obstacles to its use, to justify its continued registration.

The Hearing Officer found that the evidence presented by the Removal Opponent, including invoices and letterheads, did not sufficiently substantiate the use of the trade mark within the relevant period. While the Removal Opponent claimed extensive reputation and use in the horse racing industry, the evidence did not demonstrate this use outside the specified period. The Hearing Officer also declined to consider new evidence submitted by the Removal Opponent on the eve of the hearing, finding it would significantly prejudice the Removal Applicant and that the information was not relevant to the use of the trade mark. Consequently, the Hearing Officer was not satisfied that it was reasonable to exercise discretion to allow the trade mark to remain registered.

Accordingly, the Removal Applicant's opposition to the removal of the trade mark was not established. The Hearing Officer directed that trade mark registration 1543379 be removed from the Register one month from the date of the decision, with provisions for a stay of removal pending any appeal. Costs were awarded against the Removal Opponent.