Seekers Australia Pty Ltd v Janine Zylstra

This decision concerns an application by Seekers Australia Pty Ltd (the Applicant) to remove a registered trade mark from the Register, opposed by Janine Zylstra (the Opponent). The dispute centred on allegations of non-use of the trade mark. The matter was heard by Heath Wilson, a Hearing Officer of the Trade Marks Hearings.

The Hearing Officer was required to determine whether the grounds for removal of the trade mark, based on non-use, had been established by the Applicant. Additionally, the Hearing Officer had to consider whether, even if grounds for removal were established, it was reasonable to exercise discretion under section 101(3) of the relevant Act to allow the trade mark to remain on the Register, and if so, in relation to which goods or services.

The Hearing Officer found that the Applicant had established the ground for removal in relation to all registered goods due to non-use during the relevant period. However, the Opponent provided evidence of prior use in relation to swimwear and preparations to re-launch the trade mark for those goods. Applying section 101(3) of the Act, the Hearing Officer was satisfied that it was reasonable to exercise discretion to allow the trade mark to remain on the Register solely for swimwear. Consequently, the trade mark was directed to be removed from the Register for all goods except swimwear, one month from the date of the decision. Given that both parties achieved a measure of success, the Hearing Officer declined to make an award of costs, ordering each party to bear their own.