Overload Group Pty Ltd v Drake International Inc

Overload Group Pty Ltd (the Opponent) sought the removal of two trade marks registered by Drake International Inc (the Applicant) from the Register under section 92 of the *Trade Marks Act 1995* (Cth) for non-use. The Opponent applied for the complete removal of one trade mark and the partial removal of another. The matter was heard by Anne Makrigiorgos, a Hearing Officer.

The legal issues before the court were whether the trade marks had remained registered for a continuous period of three years ending one month before the filing of the non-use application, without the registered owner having used the trade marks in Australia in good faith, or whether there were circumstances that constituted an obstacle to such use. The onus was on the Opponent to establish, on the balance of probabilities, that the trade marks had been used in good faith or that obstacles to use existed during the relevant period.

The Hearing Officer found that the ground for removal under section 92(4)(b) of the Act had been established in respect of certain goods and services. The Hearing Officer was unpersuaded that the Opponent had provided sufficient justification to retain the trade marks on the Register for the unused goods and services. Consequently, the Hearing Officer exercised her discretion not to allow the retention of these goods and services.

The Hearing Officer directed that one trade mark registration be amended to limit its scope to specific logistics services. The other trade mark registration was directed to be removed from the Register entirely in respect of all its listed goods and services. As neither party was entirely successful, no order for costs was made.