The Decor Corporation Pty Ltd v TBG APAC Pty Ltd

The Decor Corporation Pty Ltd (the opponent) opposed the removal of its trade marks, registration numbers 173872 and 722027, from the Register of Trade Marks, sought by TBG APAC Pty Ltd (the applicant) under section 92(4)(b) of the *Trade Marks Act 1995* (Cth). The dispute concerned whether the trade marks had been used in relation to the goods for which they were registered. The decision was made by Bianca Irgang, a Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether to exercise the Registrar's discretion to remove the trade marks from the Register. This required determining whether the trade marks had been used during the relevant period, and if so, the extent of that use, to inform the exercise of discretion.

The Delegate found that the opponent had indeed used the trade marks in question during the relevant period. However, this use was confined to only some of the goods for which the trade marks were registered. Consequently, the Delegate determined that it was not appropriate to exercise the Registrar's discretion to remove the trade marks in their entirety. Instead, the Delegate ordered that the registrations be limited to the goods in respect of which use had been established, with the trade marks to be removed for the remaining goods after one month from the date of the decision, unless an appeal was lodged. Given that both parties achieved some success, the Delegate ordered that each party bear their own costs.