Sunpab Health Products Pty Ltd v I.E. Medica Inc

This matter concerned an opposition by Sunpab Health Products Pty Ltd (the Removal Opponent) to the removal of its trade mark from the Register of Trade Marks, initiated by I.E. Medica Inc (the Removal Applicant). The core dispute revolved around whether the Removal Opponent had used the trade mark in Australia, held the requisite intention to use it, or otherwise authorised its use during the relevant period. The proceedings were heard by Benjamin Goldsworthy.

The legal issues before the court were whether the Removal Opponent had discharged the onus of proving, on the balance of probabilities, that it had used the trade mark in Australia, or had a genuine intention to use it, or had authorised its use in respect of the registered goods. The court was also required to consider whether to exercise its discretion under section 101(3) of the *Trade Marks Act* to not remove the trade mark from the Register, even if the ground for removal was established.

The court found that the Removal Opponent had not discharged the onus of proof regarding the use or intention to use the trade mark. While evidence suggested exports of goods by related entities before the relevant period, this did not establish use by the Removal Opponent itself, nor did it demonstrate a clear authorisation of use. The court noted the lack of corroborating evidence regarding the relationship between the entities involved and declined to assume a relationship without further information. Consequently, the Removal Opponent failed to rebut the allegations made under section 92(4)(a) of the Act.

Given that the Removal Opponent had not demonstrated use or intention to use the trade mark, the court considered its discretion under section 101(3). However, the Removal Opponent bore the onus of persuading the court that it was reasonable not to remove the mark. As the Removal Opponent had not established the necessary grounds for opposition, the court was not satisfied that it was reasonable to exercise its discretion in favour of the Removal Opponent.