Springhill Winery Pty Ltd v Big Shed Brewing Concern Pty Ltd

In a decision by Hearing Officer Tracey Berger, Springhill Winery Pty Ltd (the Removal Applicant) sought the removal of trade mark registration number 1096136 from the Register, held by Big Shed Brewing Concern Pty Ltd (the Removal Opponent). The grounds for removal were based on allegations of non-use of the trade mark in relation to the registered goods.

The central legal issue before the Hearing Officer was whether the Removal Opponent had established use of the trade mark in Australia, and if not, whether the discretion to allow the trade mark to remain on the Register should be exercised. The Hearing Officer was required to determine if the Removal Opponent had successfully rebutted the allegation of non-use.

The Hearing Officer found that there was no documentary evidence demonstrating use of the trade mark by the Removal Opponent or its predecessor in title in Australia. While the Removal Opponent had indicated future plans for use, no timeline was provided, and crucially, no submissions were made to persuade the Hearing Officer to exercise discretion in its favour. Consequently, the Hearing Officer was not satisfied that the trade mark should remain on the Register.

Accordingly, the Hearing Officer directed that trade mark registration number 1096136 be removed from the Register one month from the date of the decision, with provisions for a stay pending any appeal. The Removal Opponent was also ordered to pay the Removal Applicant's costs.