Opposition by New England Solar Power Pty Ltd to application under section 92 of the Trade Marks Act 1995 (Cth) by Daniel Salera to remove trade mark number 1215830 (class 9) – SolarShed - in the name of New...

This matter concerned an application by Daniel Salera to remove trade mark registration number 1215830, "SolarShed" in Class 9, from the Register, which was opposed by the registered owner, New England Solar Power Pty Ltd. The application for removal was brought under section 92 of the *Trade Marks Act 1995* (Cth), alleging non-use or an obstacle to use of the trade mark in the relevant period. The decision was made by Tracey Berger.

The primary legal issue before the court was whether the applicant for removal had established grounds under section 92 of the *Trade Marks Act 1995* (Cth) to justify the removal of the trade mark from the Register. This involved an assessment of whether there had been no genuine use of the trade mark, or whether circumstances had arisen in which the trade mark had become a generic term for the goods or services in respect of which it was registered, or whether there was an obstacle to its use. The court also considered the Registrar's discretion in such matters, although the ultimate decision rested on the evidence presented.

The court found that the Removal Opponent had not established its opposition to the removal of the trade mark. Consequently, the court ordered that trade mark registration No. 1215830 be removed from the Register one month from the date of the decision, with a stay of removal pending any appeal. The court also awarded costs against the Removal Opponent, as costs generally follow the event.