Orientis Gourmet v ABCDEX Pty Ltd and Burkhard Geiger

The proceeding before the court involved an application by ABCDEX Pty Ltd and Burkhard Geiger (the Applicants) seeking the removal of a registered trade mark from the register, and an opposition by Orientis Gourmet (the Opponent). The dispute concerned allegations of non-use of the trade mark.

The primary legal issue before the court was whether the Opponent had established use of the trade mark, or a substantially similar mark, within the relevant period to resist the application for removal. Given that an extension of protection had been granted for more than five years, the court focused its consideration on the grounds for removal under section 92(4)(b) of the relevant Act.

The court reasoned that to successfully oppose the removal application, the Opponent was required to provide clearly dated evidence demonstrating use of the trade mark in relation to the goods within the specified relevant period. The court found that the evidence provided by the Opponent, including declarations and exhibits, was insufficient. Specifically, dated documents such as vendor registration forms and invoices were outside the relevant period, and images of product packaging, while showing the trade mark, contained dates that were either outside the relevant period or too difficult to read to be of assistance. The court noted that undated examples of use carry little weight in such proceedings.