Ray Stuart v Freelane Systems Pty Ltd

This matter concerned an opposition by Freelane Systems Pty Ltd to an application by Ray Stuart to remove trade mark number 430911, "FREELANE", from the Register of Trade Marks. The trade mark was registered in class 20 for various furniture and shop fitting items. Mr Stuart, a person aggrieved and proprietor of the business name "Freelane Australia", sought removal of the mark on the ground that Freelane Systems had not used it in relation to the registered goods during the period 28 February 1993 to 29 February 1996. The application was filed more than five years after the trade mark's initial application date, triggering the provisions for removal based on non-use.

The delegate of the Registrar of Trade Marks was required to determine whether Freelane Systems had discharged the onus placed upon it by section 100(1)(c) of the *Trade Marks Act 1995* to rebut the allegation of non-use of the trade mark during the relevant three-year period. This involved assessing the evidence presented by Freelane Systems, which consisted of a declaration by its director, William Oscar Mackay, supported by invoices and correspondence. The delegate also considered an application by Mr Stuart to serve further evidence, which was made orally at the hearing.

In relation to the application to serve further evidence, the delegate applied the principles derived from *Ladd v Marshall*, considering the reason for the delay, the importance of the evidence, and its credibility. The delegate found that Mr Stuart's representative had not provided a satisfactory explanation for the late production of the material, nor had the significance or credibility of the proposed evidence been sufficiently demonstrated. Consequently, the application to serve further evidence was withdrawn by Mr Stuart's representative. Regarding the core issue of non-use, the delegate found that the evidence provided by Freelane Systems was insufficient to discharge the burden of proof. The Mackay declaration asserted use, but the attached invoices and correspondence largely fell outside the relevant period, and the single invoice within the period was blank, rendering it of no value in demonstrating sales or use of the trade mark.

Accordingly, the delegate found that Freelane Systems had failed to establish use of the trade mark "FREELANE" in relation to the registered goods during the relevant period. The opposition to the removal application was dismissed, and the delegate directed that trade mark number 430911 be removed from the Register, subject to any appeal. No award of costs was made, as neither party had applied for them.