Superior Gold Bananas Australia Pty Ltd v National Foods Limited

This matter came before Alison Windsor, a Hearing Officer of the Trade Marks Hearings, concerning an application by National Foods Limited (the opponent) to remove the trade mark SUPERIOR GOLD, registered by Superior Gold Bananas Australia Pty Ltd (the applicant), from the Register. The dispute centred on allegations of non-use of the trade mark in relation to certain goods for which it was registered.

The primary legal issue before the Hearing Officer was whether the applicant had used its trade mark SUPERIOR GOLD in Australia in good faith in relation to the goods for which it was registered, specifically within the three-year period preceding the filing of the removal application, as stipulated by section 92(4)(b) of the relevant legislation. The opponent contended that the applicant had not demonstrated sufficient use, while the applicant sought to retain the full scope of its registration.

The Hearing Officer considered evidence presented by both parties. The opponent relied on declarations from employees of a retail outlet who attested to seeing various products, including smoked salmon and trout, cold meats, and dried and glacé fruits, sold under the SUPERIOR GOLD trade mark, noting that these were generally only available at Christmas and Easter. The applicant, however, failed to provide evidence of advertisements or other means by which the trade mark had been presented to consumers to create an expectation of a broad range of goods. Applying the principles of section 92(4)(b), the Hearing Officer found that while use had been demonstrated for a limited range of goods, it was insufficient to justify retaining the entire registration.

Consequently, the Hearing Officer directed that the applicant's registration be amended to remove all goods except for those for which use had been proven. Specifically, the registration was to be restricted to "Cooked, preserved and dried meat and poultry; smoked salmon and trout; dried and glace fruits" in Class 29, and "Bananas" in Class 32. The Hearing Officer also declined to make any award of costs, noting that neither party had been completely successful.