Yun yun AI Baby camera Co Ltd v Sim2 Multimedia S.P.A

This matter concerned an application by Yunyun AI Baby Camera Co Ltd (the Removal Applicant) seeking the cessation of protection for Sim2 Multimedia S.P.A's (the Removal Opponent) trade mark in respect of goods in Class 9. The application was brought under regulation 17A.48C of the Trade Marks Regulations 1995 (Cth), alleging non-use of the trade mark. The decision was made by Benjamin Goldsworthy, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the Removal Opponent had provided sufficient evidence to demonstrate use of the trade mark in Australia for goods in Class 9, thereby justifying the exercise of discretion to allow the trade mark to remain on the Register. The delegate also considered a preliminary issue regarding the admissibility of certain evidence filed by the Removal Opponent.

In reaching his decision, the delegate considered the evidence provided by the Removal Opponent, which included a declaration from its administrator, invoices from a related entity to a distributor named Living Edge, and screen captures from the Living Edge website. The delegate found that while there was a reasonably clear link between the goods referred to in the invoices and the images on the website, the overall evidence did not sufficiently demonstrate use of the trade mark. The delegate noted that the Removal Opponent offered only bare assertions regarding the relevant factors for exercising discretion and failed to satisfy him that it was reasonable to do so.

Consequently, the delegate declined to exercise his discretion to allow the trade mark to remain on the Register for the specified goods in Class 9. The delegate directed that the specification of goods be amended to remove the Class 9 items. The Removal Opponent was also ordered to pay the Removal Applicant's costs.