Opposition by Pendel Group Pty Ltd to application by FMTM Distribution Ltd for removal of trade mark 749333 (14) – MARINER AQUATIC (figurative) - in the name of Pendel Group Pty Ltd

The dispute before the Federal Court of Australia concerned an opposition by Pendel Group Pty Ltd to an application by FMTM Distribution Ltd for the removal of the trade mark MARINER AQUATIC (figurative), registration number 749333, from the Register. FMTM Distribution Ltd sought removal of the trade mark pursuant to section 92(4)(b) of the *Trade Marks Act 1995* (Cth), alleging non-use.

The primary legal issue before the Court was whether Pendel Group Pty Ltd had made genuine use of the trade mark MARINER AQUATIC during the relevant period, as required by the *Trade Marks Act 1995*. If non-use was established, the Court was then required to consider whether to exercise its discretion to allow the trade mark to remain on the Register despite the lack of use.

The Court found that there had been no genuine use of the trade mark MARINER AQUATIC by Pendel Group Pty Ltd during the relevant period. Consequently, the Court determined that it would not exercise its discretion in favour of Pendel Group Pty Ltd, and the trade mark was ordered to be removed from the Register. The Court also awarded costs against Pendel Group Pty Ltd in favour of FMTM Distribution Ltd.