Re: Opposition by Schutz-Werke GmbH & Co. KG. to an application in the name of Forecast & Trading Pty Limited to remove trade marks numbers 423095(25) and 490301(25)

This decision concerns an application by Forecast & Trading Pty Limited to remove two trade marks, numbers 423095 (a device mark) and 490301 (the word "fanatic"), from the Register. Both marks are registered in the name of Schutz-Werke GmbH & Co. KG for clothing in class 25. Forecast & Trading sought removal under section 92 of the *Trade Marks Act 1995*, alleging it was aggrieved by the registrations. Schutz-Werke opposed the removal applications, raising several grounds, including that Forecast & Trading was not a person aggrieved and that the trade marks had been used by the registered proprietor. The matter was heard by a Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether Forecast & Trading had standing to apply for the removal of the trade marks, specifically whether it qualified as an "aggrieved person" under section 92(1) of the *Trade Marks Act 1995*. This required the Delegate to consider the nature of the evidence needed to establish such standing, particularly in light of the Federal Court's decision in *Kraft Foods Inc v Gains Pet Food Corp*. A secondary issue, addressed for completeness, concerned whether Schutz-Werke had used its registered trade marks in respect of clothing.

The Delegate reasoned that establishing "aggrieved person" status is a threshold requirement for removal applications. Citing *Kraft Foods Inc v Gains Pet Food Corp*, the Delegate held that the mere filing of an application for registration of a trade mark, without more, is insufficient to establish that a person is appreciably disadvantaged in a legal or practical sense by the continued registration of an identical or deceptively similar mark. Forecast & Trading's evidence, primarily the assertion of grievance due to its own trade mark application being cited against Schutz-Werke's marks, and the lack of further evidence demonstrating a clear intention to use its mark or foreseen adverse consequences from the existing registrations, was deemed insufficient to meet this standard. Consequently, Forecast & Trading failed to establish it was a person aggrieved and therefore lacked standing to bring the removal applications.

As Forecast & Trading failed to establish standing, the Delegate found it unnecessary to determine the issue of use of the trade marks by Schutz-Werke. However, the Delegate did comment on the evidence of use, noting criticisms regarding the lack of English translations for invoices and the content of the translated documents, which did not appear to relate to clothing sales. Despite the applicant's failure to establish standing, the Delegate awarded Forecast & Trading two-thirds of its costs, taking into account Schutz-Werke's non-compliance with regulations regarding the submission of evidence in English, which caused expense and inconvenience to the applicant.