Opposition by Sinch Software Pty Ltd to application by Sinch AB for partial removal of trade mark registration number 610657 (9) - Sinch (figurative) - in the name of Sinch Software Pty Ltd

This matter concerned an opposition by Sinch Software Pty Ltd (the Removal Opponent) to an application by Sinch AB (the Removal Applicant) for the partial removal of trade mark registration number 610657, which registered the figurative mark "Sinch" in class 9. The application for removal was brought under sections 92(4)(a) and 92(4)(b) of the *Trade Marks Act 1995* (Cth), alleging non-use of the trade mark. The decision was made by Louise Tuohy, a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the Removal Applicant had established grounds for the partial removal of the trade mark registration under sections 92(4)(a) and 92(4)(b) of the Act, and if so, whether the delegate should exercise discretion in favour of the Removal Opponent. Specifically, the delegate had to determine if the Removal Opponent had used the trade mark in Australia in good faith in relation to the goods in class 9 during the relevant periods specified in the Act, thereby rebutting the non-use allegations. The onus was on the Removal Opponent to prove such use.

The delegate reasoned that the purpose of section 92 of the Act is to facilitate the removal of unused trade marks, and the public interest in the integrity of the Register generally supports such removal. Consequently, the Registrar's discretion to preserve a registration should not be exercised liberally, and the Removal Opponent bears the burden of satisfying the Registrar that the discretion should favour them. In this instance, the Removal Opponent's claim that the trade mark was needed to support philanthropic efforts was not substantiated by the evidence. Furthermore, the delegate found that the Removal Opponent's private interests did not outweigh the public interest in maintaining the integrity of the Register. The delegate was not satisfied that the evidence justified exercising discretion in favour of the Removal Opponent for the broad range of goods in class 9.

Accordingly, the delegate ordered that trade mark registration number 610657 be partially removed from the Register one month from the date of the decision, as the Removal Opponent had not established use of the trade mark in relation to the goods. The delegate also awarded costs against the Removal Opponent, following the usual principle that costs follow the event.