Re: Opposition by Urmila Investments Pty Ltd Atf Urmila Investments Trust to an application under section 92 of the Trade Marks Act 1995 (Cth) by Freshii One LLC to remove trade mark number 1659029 (class 29, 30 –...

This matter concerned an application by Freshii One LLC to remove trade mark number 1659029 from the Register under section 92 of the *Trade Marks Act 1995* (Cth). Urmila Investments Pty Ltd (as trustee for the Urmila Investments Trust) opposed this application. The trade mark was registered in classes 29 and 30, which relate to food items.

The primary legal issue before the court was whether the registered proprietor, Urmila Investments Pty Ltd, had demonstrated an intention to use or actual use of the trade mark during the relevant period, as required by section 92(4)(a) of the Act. This involved assessing the evidence provided by both parties regarding the use and intended use of the trade mark.

The court considered the evidence presented by Urmila Investments Pty Ltd, including a declaration from its solicitor which stated an intention to use the trade mark and attached examples of labels. However, the court found this declaration lacked detail regarding how the solicitor obtained the information and did not establish that the labels were created in the ordinary course of business prior to the removal application. The court also noted inconsistencies in the evidence concerning the approval for sale of goods bearing the trade mark. In contrast, the evidence from Freshii One LLC, through its CEO, detailed its extensive international use of a similar trade mark for related food products and its expansion into Australia. The court applied the principles from *E & J Gallo Winery v Lion Nathan Australia Pty Limited*, acknowledging that while the integrity of the register is paramount, private commercial interests and the balance between public and trader interests are also relevant. Ultimately, the court found that Urmila Investments Pty Ltd had not established an intention to use or actual use of the trade mark on the registered goods during the relevant period, and that any evidence of use post-application was insufficient.

Consequently, the court determined that it was not appropriate to exercise the Registrar's discretion to allow the trade mark to remain on the Register. The court ordered that trade mark number 1659029 be removed from the Register in respect of all goods for which it was registered.