Re: Opposition by Bayerische Motoren Werke AG to application under section 92 of the Trade Marks Act 1995 (Cth) by Electracom Pty Ltd to remove trade mark number 1464578 (classes 3, 8, 9, 11, 12, 14, 27, 28, 29,

Bayerische Motoren Werke AG (BMW) opposed an application by Electracom Pty Ltd to remove trade mark number 1464578 from the Register of Trade Marks under section 92 of the *Trade Marks Act 1995* (Cth). The application sought removal of the trade mark in relation to specific goods within class 9. The hearing officer considered whether use of the trade mark had been established in relation to some goods and, if not, whether discretion should be exercised in favour of removal for the remaining goods.

The primary legal issue before the hearing officer was whether Electracom Pty Ltd had established genuine use of the trade mark in Australia for the goods in respect of which removal was sought. If use was not established for certain goods, the hearing officer then had to consider whether to exercise discretion to remove the trade mark from the Register for those goods, or to allow it to remain.

The hearing officer found that Electracom Pty Ltd had established genuine use of the trade mark in relation to some of the goods within class 9. However, for the remaining goods, no such use was established. Applying the principles governing the exercise of discretion under section 92, the hearing officer determined that it was appropriate to exercise discretion in favour of removal for all the remaining goods for which use had not been proven.

Consequently, the hearing officer ordered that the trade mark be removed from the Register in relation to the specific goods within class 9 for which Electracom Pty Ltd had failed to establish genuine use.