Re: Opposition by S & A Restaurant Corp. to an application for removal of trade mark number 376352 by Conquip Holdings Pty Ltd

This decision concerns an application by Conquip Holdings Pty Ltd to remove trade mark number 376352, "bennigan’s", from the Register of Trade Marks. The registered proprietor is S & A Restaurant Corp. The application for removal was made under section 23 of the *Trade Marks Act 1955* (Cth), alleging non-use of the trade mark in Australia for a continuous period of three years between February 1992 and February 1995. The opposition to the removal application was brought by S & A Restaurant Corp. The proceedings were heard by a Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether Conquip Holdings Pty Ltd had established a *prima facie* case of non-use of the trade mark "bennigan’s" in Australia during the relevant three-year period. This required Conquip to present evidence that would, if uncontradicted, be sufficient to establish the grounds for removal. The Delegate also had to be satisfied that Conquip was a "person aggrieved" by the existence of the registration, a prerequisite for making such an application.

The Delegate's reasoning focused on the adequacy of Conquip's evidence. While Conquip provided declarations from investigators, the Delegate found the evidence to be significantly flawed. Enquiries made through Yellow Pages and Telecom were deemed to have insufficient geographic and temporal coverage. Telephone surveys of businesses were disregarded due to a lack of detail regarding the interviewees' competence, authority, and the specific nature of the questions asked, particularly as they related to services rather than goods. Enquiries made to the US Consulate General and a US restaurant manager were also found to be of no weight. Similarly, searches of the Australian Securities Commission and Liquor Licensing Commissions were considered to have limited relevance due to their timing and lack of connection to the relevant period of alleged non-use. Ultimately, the Delegate concluded that Conquip had failed to meet the basic requirement of establishing a *prima facie* case of non-use, as the evidence presented did not amount to the "slight evidence" required to shift the onus to the registered proprietor.

Consequently, the application for removal of trade mark number 376352 was refused. The Delegate ordered that costs follow the cause, awarding costs to the opponent, S & A Restaurant Corp.