Phillip Ryan v Racing & Wagering Western Australia

Phillip Ryan, the registered owner of the trade mark "PLAYER PROTECTION KEY", sought to oppose an application by Racing & Wagering Western Australia to remove the mark from the Register of Trade Marks for non-use. The application was heard by Alison Windsor, a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the trade mark had been used in Australia in relation to the registered services, and whether the grounds for removal under sections 92(4)(a) and 92(4)(b) of the *Trade Marks Act 1995* (Cth) were established. Specifically, the delegate had to determine if Mr Ryan had the intention to use the trade mark in good faith at the time of filing the application, or if the trade mark had remained registered for a continuous period of three years without use.

The delegate found that Mr Ryan's evidence, while describing a player pre-commitment technology for the gambling industry, did not demonstrate actual use of the trade mark in relation to the registered services. Mr Ryan's company, Responsible Gaming Networks Pty Ltd, was incorporated in 2009, after the trade mark was registered in 2004. While Mr Ryan intended to deploy his technology, the delegate concluded that the registered trade mark was not relevant to the device he intended to provide. The delegate exercised discretion to remove the registration from the Register.

The delegate ordered that registration number 1017163 be removed from the Register one month from the date of the decision, subject to any appeal. The removal applicant was awarded costs against Mr Ryan.