The Applicant submits that the Further Submissions are an attempt to file further evidence in support after the evidence stages of the proceedings are clearly closed and with no request by the Opponent to file further evidence. Accordingly, any statements in the Opponent's submissions which are evidentiary in nature and not submissions should be disregarded and given no weight. I agree with the Applicant.
The Opponent has not requested consideration of this further evidence, nor pay the required extension fee.[16] Regardless, as the Further Submissions are replete with unsupported assertions, the evidence would be given little if any weight, being, as the Applicant submits, of no probative value.
Use of the Trade Mark in the Relevant Period is crucial in a non-use matter. It is incumbent upon the Opponent to provide clearly dated evidence showing use of the Trade Mark upon, or in physical or other relation to, the Challenged Goods and Services within that period in order to rebut the allegation of non-use. The Opponent does not do this. Mimeran consist entirely of unsupported assertions, such that I cannot be satisfied that any purported use occurred during the Relevant Period in respect of the Challenged Goods and Services.
As I am satisfied that the Opponent's evidence is devoid of any concrete evidence of use of the Trade Mark during the Relevant Period, the Opponent has not established, on the balance of probabilities, that the Trade Mark has been used in good faith in relation to the Challenged Goods and Services during the Relevant Period and the Opponent has not rebutted the s 92(4)(b) non-use allegation.

The Applicant submits that a vast number of claims made by the Opponent are not supported by fact or evidence and should be given no weight and I agree.
The Opponent also filed Further Submissions which like Goldberg, is an attempt to introduce evidence in support which again consists largely of unsupported assertions. The Opponent submits that the Further Submissions:
- provide information which clearly demonstrates the use and importantly intention to continue to use the Trade Mark in Australia;
- clearly confirm the use of the Trade Mark in relation to all the Challenged Goods and Services in Australia in the recent period as well as stating the owner's clear intention to further invest and continue to use and expand the Trade Mark;

provide the continued and future use of the Trade Mark including that the owner has complete dedication and commitment to continue to use this brand in Australia and has allocated investment and resources to support the growth of this brand; and
provide that the Trade Mark was filed and securely registered in Australia in good faith.

The Applicant submits that the Further Submissions are an attempt to file further evidence in support after the evidence stages of the proceedings are clearly closed and with no request by the Opponent to file further evidence. Accordingly, any statements in the Opponent's submissions which are evidentiary in nature and not submissions should be disregarded and given no weight. I agree with the Applicant.
The Opponent has not requested consideration of this further evidence, nor pay the required extension fee.[16] Regardless, as the Further Submissions are replete with unsupported assertions, the evidence would be given little if any weight, being, as the Applicant submits, of no probative value.
Use of the Trade Mark in the Relevant Period is crucial in a non-use matter. It is incumbent upon the Opponent to provide clearly dated evidence showing use of the Trade Mark upon, or in physical or other relation to, the Challenged Goods and Services within that period in order to rebut the allegation of non-use. The Opponent does not do this. Mimeran consist entirely of unsupported assertions, such that I cannot be satisfied that any purported use occurred during the Relevant Period in respect of the Challenged Goods and Services.
As I am satisfied that the Opponent's evidence is devoid of any concrete evidence of use of the Trade Mark during the Relevant Period, the Opponent has not established, on the balance of probabilities, that the Trade Mark has been used in good faith in relation to the Challenged Goods and Services during the Relevant Period and the Opponent has not rebutted the s 92(4)(b) non-use allegation.

The Opponent did not submit that there were any obstacles to the use of the Trade Mark during the Relevant Period. For completeness, there is nothing to suggest that an obstacle prevented good faith use of the Trade Mark in relation to the Challenged Goods or Services during the Relevant Period.
Accordingly, the Opponent has not rebutted the s 92(4)(b) ground for removal in respect of the Challenged Goods and Services.

Pursuant to s 101, the Registrar has a broad discretion not to remove an unused trade mark if it is satisfied that it is reasonable to do so. In PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd, the Full Federal Court provided the following insights regarding the discretion under s 101(3):

The following propositions are relevant to the exercise of this discretion:

(1) It is broad and is unfettered in the sense that there are no express limits on it. It is to be understood as limited only by the subject-matter, scope and purpose of the legislation and, in particular, by the subject-matter scope and purpose of Part 9 of the Trade Marks Act.

(2) The scope and purpose of the Trade Marks Act strikes a balance between various disparate interests. On the one hand there is the interest of consumers in recognising a trade mark as a badge of origin of goods or services and in avoiding deception or confusion as to that origin. On the other is the interest of traders, both in protecting their goodwill through the creation of a statutory species of property protected by the action against infringement, and in turning the property to valuable account by licensing or assignment. ...

(3) The particular purpose of Part 9, within which s 101 falls, is to provide for the removal of unused trade marks from the Register. It is designed to protect the integrity of the Register and in that way the interests of consumers. At the same time, it seeks to accommodate, where reasonable to do so, the interests of registered trade mark owners. Accordingly, the Court must be positively satisfied that it is reasonable that the trade mark should not be removed. The onus in this respect lies on the trade mark owner to persuade the Court that it is reasonable to exercise the discretion in favour of the owner. ...

(4) The discretion in s 101(3) is expressed in the present tense. It requires consideration of whether, at the time that the Court is called upon to make its decision, it is reasonable not to remove the mark.

(5) The range of factors considered in the exercise of the discretion has included whether or not:

(b) the registered proprietor of the mark still has a residual reputation in the mark;

(c) there have been sales by the registered owner of the mark of the goods for which removal was sought since the relevant period ended;

(d) the applicant for removal had entered the market in knowledge of the registered mark;

(e) the registered proprietors were aware of the applicant's sales under the mark;

(f) A further factor, explicitly noted in s 101(4), but which falls within the scope of the discretion in s 101(3), is whether or not the trade mark under consideration has been used by its registered owner in respect of similar goods or closely related services.[17]

Despite bearing the burden of persuasion, the Opponent has filed no submissions regarding the discretion, nor has it furnished any cogent evidence that would favour the discretion being exercised. By contrast, the Applicant has submitted that the Applicant has a genuine interest in the removal of the Trade Mark and it is in the public interest that unused marks be removed from the Register.
In my view, it is not reasonable to exercise the discretion to preserve the Challenged Goods and Services. Simply put, the public interest in protecting the integrity of the Register is not served by allowing the Trade Mark to remain registered for the Challenged Goods and Services. As such, I decline to exercise the discretion.

The Opponent has been unsuccessful in its opposition and the ground for removal of the Registration under s 92(4)(b) has been established in respect of all the Challenged Goods and Services. I therefore direct that registration number 2120081 be restricted by the removal of all the Challenged Goods and Services.
In the event of an appeal from this decision, the registration shall not be restricted until the appeal has been discontinued or dismissed, or in the event of a decision from the court, that the registration be dealt with as the court sees fit.

Both parties have sought their costs. Costs generally follow the event, and I see no reason to depart from that principle in this matter. As such, I award costs against the Opponent in accordance with the amounts set out in Schedule 8 of the Regulations.

[1] Unless otherwise stated, each reference to a section is a reference to a section of the Trade Marks Act 1995 (Cth) ('Act') and each reference to a regulation is a reference to a regulation in the Trade Marks Regulations 1995 (Cth) ('Regulations').

[3] This interpretation has been well accepted in respect of removal applications against trade marks with a filing date before 19 February 2019, namely those prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) sch 1, pt 3. See, for example, Moores MDP Pty Ltd v Moore Stephens International Licensing [2023] ATMO 86, [23] (Hearing Officer Wilson); Auswool Products Pty Ltd v Source Co International Pty Ltd [2022] ATMO 173, [9] (Hearing Officer Berger); Bangkok Broadcasting & TV. Co Ltd v Seven Network (Operations) Limited [2021] ATMO 78,[21] (Hearing Officer Knowles).

[5] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ), albeit in respect of oppositions under s 52.

[7] [1998] FCA 440 (citations omitted).

[11] Nodoz Trade Mark (1962) RPC 1, 7 (Wilberforce J) ('Nodoz')

[13] Digitus Information Systems Pty Ltd v Leap Software Developments Pty Ltd [2018] ATMO 153, [16] (Hearing Officer Wilson). See also Simon Burke v Factor Holdings Ltd [2019] ATMO 69, [24] (Hearing Officer K Brown).

[14] Aristedes Maniatis v Roche Diagnostics GmbH [2022] ATMO 59, [26] (Hearing Officer Smith); Great White Shark Enterprises Inc v Joose Apparel Pty Ltd [1998] ATMO 8 (Hearing Officer Forno).

[15] See s 8(2) of the Trade Marks (Means and Form of Filing Documents and Evidence) (Opposition and Other Proceedings) Instrument 2019 which states that 'the evidence must be in a form of a declaration'.

[17] [2021] FCAFC 128, [153] (Jagot, Nicholas and Burley JJ) (emphasis altered) (citations omitted).

Marks Regulations 1995

Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018

Bazaar Global Venture Pty Ltd v BAZAAR Figurative & device [2025] ATMO 245 (26 November 2025)

Bazaar Global Venture Pty Ltd v BAZAAR Figurative & device [2025] ATMO 245

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Bazaar Global Venture Pty Ltd v BAZAAR Figurative & device [2025] ATMO 245 (26 November 2025)