Societe Des Produits Nestle SA v Kabushiki Kaisha Yakult Honsha [Sec=Unclassified]

Societe Des Produits Nestle SA (Nestle) and Kabushiki Kaisha Yakult Honsha (Yakult) were parties to proceedings before the Federal Court of Australia. The dispute concerned the validity of a trade mark registration held by Yakult, specifically trade mark number 1480000, which comprised the word "YAKULT" in a distinctive font and colour scheme. Nestle sought to have this registration removed from the Register of Trade Marks on the grounds that it had not been genuinely used in Australia in relation to the goods for which it was registered, and that it had been registered without a bona fide intention to use it.

The primary legal issue before the Court was whether Yakult had discharged its onus to prove that the trade mark had been genuinely used in Australia in accordance with section 92(1) of the *Trade Marks Act 1995* (Cth). This involved determining the meaning of "genuinely used" in the context of trade mark law and assessing the evidence presented by Yakult to demonstrate such use. A secondary issue, contingent on the primary finding, was whether the trade mark had been registered without a bona fide intention to use it, as per section 92(2) of the Act.

Justice Thompson found that the evidence of use presented by Yakult was insufficient to establish genuine use. His Honour considered that the use demonstrated was sporadic and limited, and did not reflect a real commercial exploitation of the trade mark in Australia. The Court applied the principles established in cases concerning genuine use, emphasizing that isolated or token use would not suffice. Consequently, the Court concluded that Yakult had failed to prove genuine use of the trade mark.

As a result of the finding that the trade mark had not been genuinely used, the Court ordered the removal of trade mark number 1480000 from the Register of Trade Marks.