Re: Opposition by Alice Corporation Pty. Ltd. to an application under section 92 of the Trade Marks Act 1995 (Cth) by Fivepals, Inc. to remove trade mark number 786298 (9, 35, 36, 42) - Alice Corporation (fancy)

This matter concerned an application by Fivepals, Inc. (the Removal Applicant) to remove trade mark number 786298 from the Register under section 92 of the *Trade Marks Act 1995* (Cth) (the Act), on the grounds of non-use. Alice Corporation Pty. Ltd. (the Removal Opponent) opposed this application. The decision was made by Mary-Ann Cooper, a Hearing Officer acting as a delegate of the Registrar.

The primary legal issue before the Hearing Officer was whether the Removal Opponent had demonstrated that it had used the trade mark in Australia in good faith, or that there was a relevant obstacle to its use, during the three-year period preceding the filing of the removal application. The onus was on the Removal Opponent to rebut the allegation of non-use on the balance of probabilities.

The Hearing Officer found that the Removal Opponent had failed to discharge its onus. While the Removal Opponent claimed its resources had been expended on patent litigation in the US and that it had inadvertently failed to renew its Australian trade mark, it provided no evidence of actual use of the trade mark in Australia during the relevant period. The evidence indicated that the Removal Opponent was unknown at its registered address and had moved its principal place of business to its accountants' office, with a stated lack of current interest in a public persona. Consequently, the ground for removal was established.

The Hearing Officer ordered that the trade mark be removed from the Register in respect of all goods and services for which it was registered, with a stay of one month to allow for any appeal. Costs were awarded to the Removal Applicant.