Opposition by Spa Tech International Pty Ltd to application under section 92 of the Act by Decina Bathroomware Pty Ltd to remove trade mark number 856237 (11) - Indulgence - in the name of Spa Tech International Pty Ltd

This matter concerned an application by Decina Bathroomware Pty Ltd to remove the trade mark "Indulgence" (number 856237) from the Register, which was opposed by the registered owner, Spa Tech International Pty Ltd. The application for removal was based on non-use of the trade mark for a continuous period of three years ending one month before the filing of the application. The hearing officer was tasked with determining whether the grounds for removal had been established and, if so, whether to exercise discretion to allow the trade mark to remain on the Register.

The primary legal issue was whether Spa Tech International Pty Ltd had used the trade mark "Indulgence" in Australia in good faith during the relevant three-year period preceding the application for removal. A secondary issue was whether, even if non-use was established, the hearing officer should exercise discretion under section 101(3) of the *Trade Marks Act 1995* (Cth) to allow the trade mark to remain on the Register.

The hearing officer found that Spa Tech International Pty Ltd had not discharged the onus of proving use of the trade mark during the relevant period. The evidence presented, including marketing materials and a website screenshot, did not specify dates of circulation or appearance, and it was unclear whether the use evidenced was by the owner or an authorised user. Consequently, the grounds for removal under section 92(4)(b) of the Act were established. The hearing officer then considered the discretion under section 101(3), noting that exceptional circumstances were not required. However, the opponent had not provided evidence addressing factors relevant to the exercise of this discretion, such as abandonment or residual reputation. Therefore, the hearing officer concluded there was no cause to exercise the discretion in favour of the opponent.

The hearing officer ordered that the trade mark "Indulgence" be removed from the Register, and that Spa Tech International Pty Ltd pay Decina Bathroomware Pty Ltd's costs. The removal was to be stayed pending any appeal.