PR Sports Pty Ltd v The Service Course (International) Limited

PR Sports Pty Ltd, the Removal Opponent, sought to retain its trade mark registration for "SERVICE COURSE" against an application for removal by The Service Course (International) Limited, the Removal Applicant. The dispute concerned allegations of non-use of the trade mark in Australia for the registered services, namely "bicycle retail and wholesale shops." The matter was heard by Tracey Berger, a Hearing Officer.

The primary legal issue before the Hearing Officer was whether the Removal Opponent had established use of the trade mark "SERVICE COURSE" as a badge of origin in Australia for the registered services during the relevant period. The Removal Opponent also sought to rely on preparatory steps and obstacles such as the COVID-19 pandemic to excuse any non-use. The Hearing Officer was required to determine if the evidence presented discharged the allegation of non-use and whether to exercise discretion to allow the trade mark to remain on the Register.

The Hearing Officer found that the evidence provided by the Removal Opponent did not unequivocally demonstrate use of "SERVICE COURSE" as a trade mark in Australia for the registered services. The Hearing Officer was not satisfied that the evidence discharged the allegation of non-use or established that obstacles prevented the Removal Opponent from using the trade mark. Consequently, the Hearing Officer concluded that it was not appropriate to exercise discretion to allow the trade mark to remain on the Register.

Accordingly, the Hearing Officer directed that trade mark registration number 1834831 be removed from the Register one month from the date of the decision, subject to any appeal. The Removal Opponent was also ordered to pay the Removal Applicant's costs.