SG Fleet Salary Packaging Pty Ltd v Finlease (Australia) Pty Ltd

This decision concerns an application by SG Fleet Salary Packaging Pty Ltd (the Removal Applicant) to remove Trade Mark Registration No. 736646 from the Register, held by Finlease (Australia) Pty Ltd (the Opponent). The application for removal was based on non-use of the trade mark during a specified period. The hearing was conducted by Michael Kirov, a Hearing Officer of the Trade Marks Hearings.

The central legal issue before the Hearing Officer was whether the Opponent had used the trade mark in the course of trade in Australia for the registered services during the non-use period, or whether there were any relevant circumstances that constituted an obstacle to such use. The Hearing Officer also had to consider whether any circumstances warranted the exercise of the Registrar's discretion not to remove the trade mark.

The Hearing Officer found that there was neither use of the trade mark by the Opponent or an authorised user in the course of trade in Australia for the relevant services during the non-use period, nor were there any circumstances that presented an obstacle to use. Consequently, the Hearing Officer determined that the discretion to allow the trade mark to remain on the Register should not be exercised in the Opponent's favour. The Hearing Officer directed that the registration be removed from the Register one month from the date of the decision, with a stay of removal pending any appeal. The Opponent was ordered to pay the Removal Applicant's costs.