TRAFALGAR GROUP PTY LTD vs Boss Fire & Safety Pty Ltd

This matter concerned an application by Trafalgar Group Pty Ltd (the applicant) to remove a registered trade mark from the register, pursuant to section 92(4)(b) of the *Trade Marks Act 1995* (Cth). The trade mark in question was registered by Boss Fire & Safety Pty Ltd (the opponent). The applicant sought removal on the grounds that there had been no use of the trade mark, or that there was an obstacle to its use, during the relevant period.

The delegate was required to determine whether the opponent had established that the trade mark had been genuinely used in Australia during the three-year period immediately preceding the filing of the notice of opposition, or whether there was a proper reason for non-use. The delegate also considered whether, in the event of non-use, the discretion to remove the trade mark from the register should be exercised.

In reaching its decision, the delegate found that the opponent had failed to demonstrate genuine use of the trade mark in Australia during the relevant period. The evidence provided by the opponent was insufficient to establish that the trade mark had been used in connection with the goods or services for which it was registered. Consequently, the delegate concluded that the grounds for removal under section 92(4)(b) were made out. The delegate then exercised its discretion to remove the trade mark from the register.