Vigilante Systems Pty Ltd v Neupart & Munkedal A/S

This matter concerned an application by Neupart & Munkedal A/S (the removal applicant) to remove the VIGILANTE trade mark from the Register, held by Vigilante Systems Pty Ltd (the opponent). The application was heard by Claudia Murray, as delegate of the Registrar of Trade Marks. The removal applicant failed to file evidence in answer to the opponent's evidence and had also ceased to have legal representation or an Australian address for service.

The primary legal issue before the delegate was whether the removal applicant had standing as a "person aggrieved" under subsection 92(1) of the relevant legislation, which is a threshold requirement for making an application for removal of a trade mark. The delegate also considered the extent to which the opponent's evidence demonstrated use of the trade mark during the relevant period, and the public interest considerations in maintaining or removing registered trade marks, but these issues were rendered moot by the failure on the standing issue.

The delegate reasoned that the right to apply for removal of a trade mark is not available to any person, but only to a "person aggrieved". Drawing on established case law, including *Ritz Hotel v Charles of the Ritz* and *Kraft Foods Inc v Gaines Pet Foods Corporation*, the delegate determined that the removal applicant's aggrieved status is assessed at the commencement of the proceedings. The delegate noted that merely filing an application for registration of a trade mark, without more, is insufficient to establish that a person is appreciably disadvantaged by the continued registration of an identical or deceptively similar mark. The delegate found that the removal applicant had not provided sufficient evidence to demonstrate it was a person aggrieved.

Consequently, the delegate refused the removal application on the grounds that the removal applicant had failed to meet the threshold criterion of being a person aggrieved. The delegate also ordered the unsuccessful removal applicant to pay the opponent's costs of the proceedings.