XYZ Networks Pty Limited v XyZ iGlobal Inc

This matter concerned an application by XYZ Networks Pty Limited (the Applicant) to remove a trade mark from the Register, opposed by XyZ iGlobal Inc (the Opponent). The dispute arose from an opposed application to register the trade mark, where the Opponent, as the registered owner, was required to demonstrate use of the trade mark. The hearing was conducted in Canberra before Debrett G. Lyons, a Hearing Officer of the Trade Marks Hearings.

The primary legal issue before the Hearing Officer was whether the Opponent had discharged its onus under section 100(1)(c) of the *Trade Marks Act 1995* (Cth) to establish that the trade mark had been used, or used in good faith, by its registered owner during the relevant three-year period preceding the opposed application. This involved an evaluation of the evidence filed by both parties concerning the use of the trade mark.

The Hearing Officer found that the evidence of use provided by the Opponent was deficient. While section 100 of the Act outlines the circumstances under which an opponent can rebut an allegation of non-use, the Hearing Officer determined that the evidence presented did not meet the required standard. Consequently, the Hearing Officer concluded that there was nothing compelling the exercise of discretion in favour of the Opponent.

The Hearing Officer ordered the removal of the trade mark from the Register in respect of class 35 services, with the removal to take effect not less than one month from the date of the decision, unless an appeal was filed. The Applicant, as the successful party, was awarded its costs against the Opponent.