Re: Opposition by Wilsford Wines Pty Ltd to application under section 92 of the Trade Marks Act 1995 (Cth) by Family Wine Estates Pty Ltd to remove trade mark number 611508 (class 33) - Wilsford in the name of..

This matter concerned an application by Family Wine Estates Pty Ltd to remove trade mark number 611508, registered in class 33, from the Register of Trade Marks under section 92 of the *Trade Marks Act 1995* (Cth). The opposition to this removal application was brought by Wilsford Wines Pty Ltd. The decision was made by Debrett Lyons, a Hearing Officer acting as a delegate of the Registrar of Trade Marks, based on the documentary evidence and written submissions filed by the parties, as no oral hearing was requested.

The primary legal issue before the Hearing Officer was whether Wilsford Wines Pty Ltd had used the trade mark in Australia in good faith in relation to the goods for which it was registered during the three-year period ending one month before the filing of the removal application. Section 92(4)(b) of the Act outlines the grounds for removal based on non-use, and section 100(1)(c) places the onus on the opponent to rebut such an allegation by demonstrating use. The Hearing Officer was required to determine if the evidence established "real, as opposed to token, use in a commercial sense" of the trade mark.

The Hearing Officer found that Wilsford Wines Pty Ltd had successfully rebutted the allegation of non-use in relation to wines. This was based on evidence demonstrating that the Opponent was a winemaker and had used the trade mark in connection with wines during the relevant period. However, the evidence did not establish use in relation to spirits and liqueurs, and the Hearing Officer was not satisfied that it was reasonable to exercise discretion to allow these goods to remain on the Register. Consequently, the Hearing Officer directed that the trade mark registration be removed from the Register in respect of spirits and liqueurs one month from the date of the decision, with the outcome subject to any appeal. Each party was ordered to bear its own costs.