Unilever Australia Ltd v Karounos

Unilever Australia Ltd brought a claim against Karounos in relation to the alleged non-use of a trade mark. The primary dispute centred on whether Karounos had used the word and device mark "Real Fish'n Chips" in relation to the specified goods and services. The case was heard in the Federal Court of Australia. The central legal issues were whether the respondents had provided sufficient evidence to satisfy the onus of showing on the balance of probabilities that the word and device mark was used in the relevant period and for the relevant classes, and if so, what classes should be covered by the mark.

The court found that the only evidence of use was that a Real Fish’n Chips shop operated during the relevant period. However, there was no evidence as to what the shop sold beyond fish and chips. The court inferred that the shop provided take-away meals or consumption of fish and chips, which fell within classes 29 and 42. Consequently, the court ruled that the mark should be removed from the register except for fish in class 29 and fish and chips in class 42. The court also ordered Karounos to pay Unilever's costs.

This case underscores the importance of providing clear and sufficient evidence of trade mark use to maintain registration. The court emphasised that mere business cards or agreements do not suffice to prove use of a trade mark. The court's decision highlights the necessity for registrants to demonstrate actual use of their marks in commerce to justify their continued registration.