Opposition by WISELIST PTY LTD to application under section 92 of the

This decision concerns an application by Wise Payments Limited for the removal of the trade mark "WisePay" (registration number 1999009) from the Register of Trade Marks. The application was made under section 92(4)(b) of the *Trade Marks Act 1995* (Cth) on the grounds of non-use. WISELIST PTY LTD, the registered owner of the trade mark, opposed the removal. The matter was heard by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the trade mark "WisePay" had been used in good faith in Australia in relation to the registered goods and services during the three-year period ending one month before the filing of the removal application. The Removal Applicant alleged non-use, placing the onus on the Removal Opponent to rebut this allegation by demonstrating use of the trade mark as a badge of origin, or by establishing circumstances that constituted an obstacle to its use.

The delegate considered evidence of use presented by WISELIST PTY LTD, including screenshots of its website and the WiseList app, which displayed the "WisePay" trade mark. The delegate found that the use of the trade mark on the WiseList website, including variations in its presentation, was sufficient to demonstrate use as a badge of origin, indicating a connection in the course of trade between the services and the owner. This use was considered in light of section 7(1) of the Act, which allows for trade mark use with additions or alterations that do not substantially affect its identity.

The delegate determined that the Removal Opponent had demonstrated use of the trade mark in relation to certain services within the relevant period. Consequently, the delegate exercised discretion not to remove the trade mark registration entirely, ordering instead that the registration be partially removed from the Register, reflecting the scope of use established.