Oppositions by Sprint Horticulture Pty Ltd to applications under section 92 of the Trade Marks Act 1995 (Cth) by Lucas Finance Pty Ltd to remove trade mark numbers 1610264 (Class 31) and 1629273 (Class 35) - Hello...

This matter concerned oppositions by Sprint Horticulture Pty Ltd (the Removal Opponent) to applications by Lucas Finance Pty Ltd (the Removal Applicant) under section 92 of the *Trade Marks Act 1995* (Cth) to remove two trade marks: number 1610264 registered in Class 31 and number 1629273 registered in Class 35. The applications for removal were based on allegations of non-use of the trade marks during the relevant three-year period ending 8 September 2019.

The Hearing Officer was required to determine whether the Removal Opponent had used its trade marks during the relevant period and, if not, whether discretion should be exercised to allow the trade marks to remain registered, either in full or in part. The legal issue revolved around the interpretation and application of the non-use provisions of the *Trade Marks Act 1995*, specifically the onus on the trade mark owner to demonstrate use and the circumstances under which discretion might be exercised to preserve a registration despite non-use.

In relation to trade mark number 1610264 (Class 31), the Hearing Officer found that the Removal Opponent had not rebutted the allegation of non-use for all registered goods. However, the Hearing Officer exercised discretion to allow the trade mark to remain registered for a specified subset of goods, namely "Flowering plants; flowers; seeds for flowering plants; bulbs for flowering plants," with certain exclusions. For trade mark number 1629273 (Class 35), the Hearing Officer found that the Removal Opponent had not rebutted the allegation of non-use and was not satisfied that it was reasonable to exercise discretion to allow the trade mark to remain registered for any of the services. Consequently, trade mark number 1629273 was ordered to be removed in its entirety.

The Hearing Officer directed that the removals would not take effect for at least one month, to allow for any potential appeals. Regarding costs, as both parties had achieved some success in relation to trade mark number 1610264, no costs were awarded for that matter. However, as the Removal Applicant was entirely successful in relation to trade mark number 1629273, costs were awarded against the Removal Opponent for that aspect of the proceedings.