Vision Group Holdings Limited v 3D Health Screen Pty Ltd

This matter concerned an application by 3D Health Screen Pty Ltd (the applicant) to remove trade mark no. 926313 from the Register of Trade Marks, which was opposed by Vision Group Holdings Limited (the opponent). The application for removal was made on the grounds of non-use, pursuant to section 92 of the *Trade Marks Act 1995* (Cth). The hearing was conducted by Jock McDonagh, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the opponent's trade mark had been used in Australia in relation to "medical services" in Class 44 during the relevant period, as required by section 92(4)(b) of the Act. The applicant contended that the opponent had not used the trade mark for medical services, but rather only for radiology services or services ancillary to radiology. The opponent, in turn, provided evidence of its trade mark's use, including website screenshots and professional body advice against certain medical procedures.

The delegate considered the evidence filed by both parties, including submissions regarding the nature of the opponent's use of its trade mark. The delegate found that the opponent had not discharged the onus of establishing use of its trade mark for "medical services" in Class 44. However, the delegate also noted that the opponent's trade mark was not liable for removal in respect of "radiology services," meaning the registration would remain on the register for those services. The delegate declined to exercise discretion to remove the registration entirely.

Consequently, the delegate ordered that "medical services" in Class 44 be removed from the specification of trade mark no. 926313 after a period of one month from the date of the decision, unless an appeal was lodged. The applicant, being the successful party, was awarded costs against the opponent.