South African Airways (Proprietary) Limited v Virtuoso Ltd

This matter concerned an application by Virtuoso Ltd (the applicant) to remove certain services from the trade mark registration of South African Airways (Proprietary) Limited (the opponent) under section 92 of the *Trade Marks Act 1995* (Cth). The dispute centred on the registration of the trade mark VOYAGER, specifically the services claimed in Class 39, which related to transportation services. The applicant sought to remove these services from the register on the grounds of non-use, while the opponent opposed the removal, asserting use of the trade mark within the relevant period. The hearing was conducted before Alison Windsor, a delegate of the Registrar, in Sydney.

The primary legal issue before the delegate was whether the applicant had standing as a "person aggrieved" to bring the application for removal of the trade mark registration. This required the applicant to demonstrate that it was, in a legal or practical sense, prejudicially affected by the continued existence of the opponent's registration. A secondary issue, which did not need to be determined due to the outcome on the first issue, was whether the opponent had actually used its trade mark in relation to the services in Class 39 during the relevant period.

The delegate reasoned that the applicant's sole evidence of being a "person aggrieved" was its own pending trade mark application for the mark VOYAGER CLUB, which had been cited against it due to the opponent's existing registration. The delegate held that the mere existence of a blocked trade mark application, without further evidence demonstrating an intention to use or actual use of the mark in Australia, was insufficient to establish standing. The delegate found that the applicant had not provided the necessary "extra information" to show it was appreciably disadvantaged.

Consequently, the delegate concluded that the applicant did not possess the requisite standing as a "person aggrieved" under section 92 of the Act. The application therefore failed at the threshold. The delegate refused to remove registered trade mark 644176 from the register and awarded costs against the applicant in favour of the opponent.