Showroom X Pty Ltd v Christine Fay Doughty

This matter concerned an application by Christine Fay Doughty (the Opponent) to remove Trade Mark registration number 504609 from the Register, pursuant to section 92(4)(b) of the *Trade Marks Act 1995* (Cth). Showroom X Pty Ltd (the Owner) opposed this application. The dispute centred on whether the Trade Mark had been used during the relevant period and whether there were obstacles to its use.

The primary legal issue before the Hearing Officer was whether to exercise the discretion under section 101(3) of the *Trade Marks Act 1995* (Cth) to not remove the Trade Mark from the Register, despite a lack of proven use or obstacles to use for certain goods. This required the Hearing Officer to be positively satisfied that such an exercise of discretion was reasonable, with the burden of persuasion falling on the Opponent.

The Hearing Officer reasoned that the Opponent had not established use of the Trade Mark for all registered goods. However, the Hearing Officer was satisfied that the Trade Mark had been used for a specific subset of goods, namely knitted tops, knitted cardigans, knitted vests, knitted wraps, and knitted sweaters. Accordingly, the Hearing Officer exercised the discretion under section 101(3) to allow the Trade Mark to remain registered for these particular goods, but ordered its removal from the Register for all other registered goods. The Hearing Officer declined to issue a Certificate of Use as use by the Owner had not been established for the relevant period. No order as to costs was made, as neither party had been entirely successful.