Opposition by Moose Enterprise Pty Ltd to application under section 92 of the

This matter concerned an application for removal of a trade mark from the Register under section 92 of the *Trade Marks Act 1995* (Cth). The Opponent, Moose Enterprise Pty Ltd, sought to resist the removal application. The hearing was conducted by Anne Makrigiorgos, a delegate of the Registrar of Trade Marks, who heard oral submissions from both parties.

The primary legal issue before the delegate was whether the trade mark had remained registered for a continuous period of three years ending one month before the filing of the removal application, without the registered owner having used the trade mark in Australia in good faith in relation to the relevant goods and services. The Opponent bore the onus of rebutting an allegation of non-use by establishing, on the balance of probabilities, that it had used the trade mark during the relevant period or that circumstances prevented such use.

The delegate reasoned that the Opponent had failed to discharge its onus. Applying the principles established in *Telstra Corporation Limited v Phone Directories Company Pty Ltd* and *Blount Inc v Registrar of Trade Marks*, the delegate considered the evidence and submissions presented. Ultimately, the delegate was not persuaded that the Opponent had established use of the trade mark in Australia in good faith during the specified three-year period.

Consequently, the delegate found that the ground for removal under section 92(4)(b) of the Act had been established in respect of all the registered goods. The delegate directed that the registration be removed from the Register for all registered goods and awarded costs against the Opponent.