Rise & Shine Education Pty Ltd v Shine Lawyers Pty Ltd

This matter concerned an application by Shine Lawyers Pty Ltd for the removal of a trade mark from the Register, opposed by Rise & Shine Education Pty Ltd. The application for removal was based on allegations of non-use of the trade mark. The court was required to determine whether the Opponent had used the trade mark during the relevant period and, if not, whether the trade mark should be removed from the Register in whole or in part.

The court considered the evidence presented by the Opponent, which included declarations and exhibits asserting use of the trade mark in connection with early childhood education and care centres and a curriculum. However, the court found a lack of evidence demonstrating a clear connection between the Opponent and the specific centres where the trade mark was allegedly used, and crucially, no evidence that the Opponent exercised control over such use by other entities within its group. While the Opponent claimed to use the trade mark as part of advertising campaigns and on various materials, the court noted that the centres themselves were operated under the name 'Rise and Shine' and referred to the curriculum as 'Shine Advantage'.

Applying the principles of trade mark law regarding use and intention to use, the court acknowledged that the onus was on the Opponent to establish use. Despite the Opponent's assertions, the court concluded that the evidence did not sufficiently demonstrate use of the trade mark by the Opponent for a substantial subset of the services for which it was registered. Consequently, the court exercised its discretion under section 101 of the *Trade Marks Act 1995* (Cth) and ordered the removal of the trade mark from the Register for some, but not all, of the services for which it was registered.