Opposition by Winter Holding GmbH & Co KG to application under section 92 of the Trade Marks Act 1995 (Cth) by SASS Clothing Pty Ltd to remove trade mark number 803136 (class 25) – BETTY BARCLAY - in the name of...

This matter concerned an opposition by SASS Clothing Pty Ltd to an application by Winter Holding GmbH & Co KG to remove trade mark number 803136, BETTY BARCLAY, from the Register in Class 25. The application for removal was brought under section 92 of the *Trade Marks Act 1995* (Cth). The decision was made by Deputy Registrar Mary-Ann Cooper.

The primary legal issue before the Deputy Registrar was whether the grounds for removal under section 92(4)(b) of the Act had been established by the applicant for removal. This section permits the removal of a trade mark from the Register if the registered owner has not genuinely commenced or has not genuinely commenced and kept in use, the use of the trade mark in Australia in relation to the goods or services for which it is registered.

The Deputy Registrar found that the removal applicant had demonstrated use of the trade mark in Australia in relation to the goods in Class 25. Consequently, the grounds for removal under section 92(4)(b) were not established. The trade mark was therefore permitted to remain on the Register.

As the removal opponent was successful in this proceeding, the Deputy Registrar ordered that the removal applicant pay the removal opponent's costs, to be assessed in accordance with Schedule 8 of the *Trade Marks Regulations 1995* (Cth).