Opposition by Mark Robinson and Brenda Robinson to an application under section 92 of the Act by Horticulture Innovation Australia Limited for removal of trade mark number 1244726 (class 31) – SIT – in the names of...

This matter concerned an opposition by Mark and Brenda Robinson to an application by Horticulture Innovation Australia Limited for the removal of trade mark number 1244726, registered in Class 31, from the Register. The application for removal was brought under section 92 of the *Trade Marks Act 1995* (Cth). The decision was made by Nicholas Barbey.

The primary legal issues before the court were whether the trade mark had been used in Australia during the relevant period, as required by section 92(4)(a) of the Act, and whether the trade mark had not been used in good faith in Australia during the relevant period, as required by section 92(4)(b) of the Act. The Robinsons sought the complete removal of the trade mark from the Register.

The court found that the grounds under section 92(4)(b) were successfully established, meaning the trade mark had not been used in good faith in Australia during the relevant period. However, the court exercised the Registrar's discretion in relation to some goods within Class 31, determining that the trade mark should remain on the Register for those specific goods. The court's reasoning focused on the evidence presented regarding the use, or lack thereof, of the trade mark in relation to the goods in question.