Opposition by Veedol International Limited to application under section 92 of the Trade Marks Act 1995 (Cth) by Veedol Lubricants Pty Ltd to remove trade mark number 1413047 (class 4) - VEEDOL - in the name of...

This matter concerned an application by Veedol Lubricants Pty Ltd (the Removal Applicant) to remove trade mark number 1413047, registered as VEEDOL in class 4, from the Register of Trade Marks under section 92(4)(b) of the *Trade Marks Act 1995* (Cth) due to non-use. Veedol International Limited (the Removal Opponent) opposed this application. The decision was made by Katrina Brown, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Removal Opponent had used the VEEDOL trade mark in Australia in relation to the registered goods during the continuous three-year period ending one month before the filing of the removal application, or whether there were circumstances constituting an obstacle to such use. The delegate was required to determine if the Removal Opponent had discharged the onus of rebutting the allegation of non-use on the balance of probabilities. If non-use was established, the delegate then had to consider whether it was reasonable to exercise discretion to allow the trade mark to remain on the Register.

The delegate found that the evidence presented by the Removal Opponent, including a purchase order and invoice from December 2019, did not demonstrate use of the trade mark as a badge of origin in Australia during the relevant three-year period. The delegate noted the history of the Veedol brand in Australia, including previous successful removal applications against other Veedol trade marks. Ultimately, the delegate was not satisfied that it was reasonable to exercise discretion to allow the trade mark to remain on the Register. Consequently, the delegate ordered that trade mark number 1413047 be removed from the Register within one month, and awarded costs to the Removal Applicant.