Re: Opposition by Development Center for Teaching Chinese as A Foreign Language of The Ministry of Education P.R.C to an application under section 92 of the Act by Fashion One (Oceania) Pty. Ltd. to remove trade..

This matter concerned an opposition by the Development Center for Teaching Chinese as A Foreign Language of The Ministry of Education P.R.C. (the Opponent) to an application by Fashion One (Oceania) Pty. Ltd. (the Applicant) under section 92 of the *Trade Marks Act 1995* (Cth) to remove a registered trade mark. The proceeding was heard by Bianca Irgang, acting as delegate of the Registrar of Trade Marks.

The central legal issue before the delegate was whether the Applicant had established that the trade mark, registered in relation to clothing and apparel, had been genuinely used in Australia in the five years preceding the filing of the removal application. The Opponent contended that there had been no such use, and therefore the registration should be removed from the Register.

The delegate considered evidence presented by both parties regarding the use of the trade mark. The Opponent's evidence focused on the lack of demonstrable use by the Applicant. The Applicant, in turn, sought to demonstrate use through various means, including online presence and promotional activities. The delegate applied the principles of trade mark law concerning the requirement for genuine use, assessing whether the evidence presented met the threshold of actual and substantial use in the course of trade, rather than merely token or sporadic use. The delegate's reasoning involved a careful evaluation of the nature, duration, and intensity of the use claimed by the Applicant.

Ultimately, the delegate found that the Applicant had failed to discharge the onus of proving genuine use of the trade mark in Australia. Accordingly, the delegate ordered the removal of the trade mark from the Register.