Opponent: Gabriella Rubagotti of Counsel instructed by Addisons

Applicant: Samuel J Hallahan of Counsel instructed by Davies Collison Cave Pty Ltd

2025 ATMO 186

Trade Marks Act 1995 (Cth) - application under ss 92(4)(a) and (b) - removal sought for entire registration - evidence does not establish that the trade mark has been used as a trade mark during the relevant period - discretion not exercised - registration to be removed-

1. On 14 February 2024, Royal Bank of Canada - Banque Royale Du Canada ('Applicant') filed an application under ss 92(4)(a) and (b) of the Trade Marks Act 1995 (Cth)[1] ('Removal Application') for the complete removal of the following registered trade mark ('Registration') in the name of MONEYME FINANCIAL GROUP PTY LTD:

Class 9: Computer software; Computer software (programs); Data processing software; Interactive computer software; Computer software platforms, recorded or downloadable

Class 42: Development of computer platforms; Platform as a Service (PaaS); Hosting of software as a service (SaaS); Software as a service (SaaS)

1. MONEYME FINANCIAL GROUP PTY LTD ('Opponent') filed a Notice of Intention to Oppose removal of the Trade Mark on 10 April 2024 and a Statement of Grounds and Particulars ('SGP') on 10 May 2024. The Applicant filed a Notice of Intention to Defend on 14 June 2024.
2. The Opponent filed Evidence in Support ('EIS') on 19 September 2024 and the Applicant filed Evidence in Answer ('EIA') on 19 December 2024. The Opponent did not file Evidence in Reply.
3. The parties were given the opportunity to be heard. An oral hearing was requested by both parties and conducted by me as a delegate of the Registrar of Trade Marks on 18 August 2025 by video conference. Samuel J. Hallahan of Counsel instructed by Stuart Green of Davies Collison Cave Pty Ltd (observed by Benita Lau of Davies Collison Cave Pty Ltd) appeared for the Opponent. Gabriella Rubagotti of Counsel instructed by Donna Short of Addisons appeared for the Applicant. The parties' oral submissions were supplemented by written submissions filed prior to the hearing. I have decided this matter based on the particulars set out in the SGP, the evidence of the parties, and the written and oral submissions of the parties.

1. The parties filed the following evidence in this matter:

Simon Willoughby, General Counsel of the Opponent ('Willoughby')

James Catsburg, Managing Counsel, Intellectual Property, Marketing & Sponsorship of the Applicant ('Catsburg')

1. Section 92 relevantly provides (notes omitted):

Application for removal of trade mark from Register etc.

(4) An application under subsection (1) or (3) (non‑use application) may be made on either or both of the following grounds, and on no other grounds:

(a) that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:

(ii) to authorise the use of the trade mark in Australia; or

(iii) to assign the trade mark to a body corporate for use by the body corporate in Australia;

in relation to the goods and/or services to which the non‑use application relates and that the registered owner:

(v) has not used the trade mark in good faith in Australia;

in relation to those goods and/or services at any time before the period of one month ending on the day on which the non‑use application is filed;

(b) that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non‑use application is filed, and, at no time during that period, the person who was then the registered owner:

(ii) used the trade mark in good faith in Australia;

in relation to the goods and/or services to which the application relates.

1. I note that an application under s 92(4)(b) may not be made before a period of five years has passed from the filing date of the application,[2] and I confirm that five years since filing the Trade Mark has in fact passed.
2. Under s 92(4)(b), the relevant period during which the Opponent must establish use of the Trade Mark in relation to the Registered Goods and Services is the three year period ending on 14 January 2024 ('Relevant Period').
3. The Opponent bears the onus of rebutting an allegation of non-use[3] by establishing, on the balance of probabilities,[4] that it has used the Trade Mark in respect of any or all of the Registered Goods and Services identified in the Removal Application during the Relevant Period or that there were circumstances that were an obstacle to use in the Relevant Period.[5]
4. In Blount Inc v Registrar of Trade Marks, Branson J observed:

Where the Act requires the Registrar to be 'satisfied' of any matter, it is to be understood as requiring that he or she be persuaded of the matter according to the balance of probabilities (Rejfeck v McElroy). That is, that the Registrar be persuaded, having given proper consideration to those factors and circumstances that the Act requires him or her to give consideration to, that such matter is more probable than not.[6]

1. It follows that unless the Opponent provides convincing proof of use of the Trade Mark in the Relevant Period in relation to the Registered Goods and Services to the satisfaction of the Registrar, the opposition to removal will not be established.
2. Provided the use is in good faith, 'a single bona fide use of the mark' may be enough to rebut an allegation of non-use,[7] but if a single act of use is relied upon then it should be established by 'if not conclusive proof, at any rate overwhelmingly convincing proof'.[8] The fewer acts relied on the more solidly ought they be established.[9]
3. Undated examples of use carry little, if any, weight in support of a claim for use of a trade mark within the relevant period.[10] Similarly, bald assertions of use during the relevant period which are not supported by clearly dated documentary evidence should be afforded little weight.[11]
4. Finally, the decision-maker may not be persuaded by evidence that is solely from internal files or that is circumstantial.[12]
5. Thus, if an opponent intends to rely on only slight evidence of use of the registered trade mark, the evidence should be of high provenance and will carry more weight if it provides objective, preferably third party, corroboration of the claims.
6. The 'use' in good faith required to be demonstrated by the Opponent is 'use as a trade mark'. Section 17 defines a trade mark as 'a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person'. Therefore, use as a trade mark is use of the sign as a badge of origin.[13]
7. Distinguishing goods of a registered owner from the goods of others and indicating a connection in the course of trade between the goods and the registered owner are essential characteristics of a trade mark.[14] There is a distinction, not always easy to apply, between use of the sign as a trade mark and use of the sign in relation to goods or services.[15] It is important to establish the link between the trade mark in question and particular goods or services to show trade mark use.[16]
8. The principles concerning trade mark use are well settled. The Full Court in Nature's Blend Pty Ltd v Nestlé Australia Ltd[17] summarised the principles regarding use as a trade mark:

(1) Use as a trade mark is use of the mark as a 'badge of origin', a sign used to distinguish goods dealt with in the course of trade by a person from goods so dealt with by someone else.

(2) A mark may contain descriptive elements but still be a 'badge of origin'.

(3) The appropriate question to ask is whether the impugned words would appear to consumers as possessing the character of the brand.

(4) The purpose and nature of the impugned use is the relevant inquiry in answering the question whether the use complained of is use 'as a trade mark'.

(5) Consideration of the totality of the packaging, including the way in which the words are displayed in relation to the goods and the existence of a label of a clear and dominant brand, are relevant in determining the purpose and nature (or 'context') of the impugned words.

(6) In determining the nature and purpose of the impugned words, the court must ask what a person looking at the label would see and take from it.

1. In relation to determining whether or not there is use as a trade mark, the court said in Woolworths Ltd v BP plc (No 2):

Whether or not there has been use as a trade mark involves an understanding from an objective viewpoint of the purpose and nature of the use, considered in its context in the relevant trade. How the mark has been used may not involve a single or clear idea or message. The mark may be used for a number of purposes, or to a number of ends, but there will be use as a trade mark if one aspect of the use is to distinguish the goods or services provided by a person in the course of trade from the goods or services provided by any other persons, that is to say it must distinguish them in the sense of indicating origin.[18]

1. The assessment of the purpose and nature of the use of the sign is objective, and it is by reference to what a member of the public could be expected to understand by its use. In determining the nature and purpose of a trade mark, the court must ask what a person looking at the label would see and take from it.[19]
2. In respect of context, the Full Federal Court in Seven Network (Operations) Limited v 7-Eleven Inc[20] stated:

Context is all-important when considering such questions: Shell; Anchorage Capital Partners Pty Limited v ACPA Pty Ltd ; RB (Hygiene Home). The context includes the relevant trade and the way in which the mark has been displayed in relation to the goods (or services): Johnson & Johnson ; Self Care.

Therefore, each case in this field will depend on its own particular facts. Nevertheless, it is instructive that in Shell, Kitto J went on to make clear that the question was not answered simply by pointing out that the allegedly infringing figure in that case had been used to represent Shell petrol. The allegedly infringing use had been in a film which, undoubtedly, was intended to promote Shell petrol. But that was not enough for it to be used as a trade mark. Kitto J found that the only purpose of the film was to convey 'a particular message about the qualities of Shell petrol' (at 425). His Honour went on to say at 425:

This fact makes it, I think, quite certain that no viewer would ever pick out any of the individual scenes in which the [oil drop] man resembles the respondent's trade marks, whether those scenes be few or many, and say to himself: 'There I see something that the Shell people are showing me as being a mark by which I may know that any petrol in relation to which I see it used is theirs.'

See also Johnson & Johnson .

The enquiry is an objective one without reference to the subjective trading intentions of the user of the mark: Gallo; Self Care. But as the above extract from Shell shows, that does not rule out considering how the mark would appear to have been used to a hypothetical (presumably reasonable) consumer: see also Pepsico Australia Pty Ltd v Kettle Chip Company Pty Ltd. The Court must ask what a person looking at the relevant material would see and take from it: Anheuser-Busch, Inc v Budějovický Budvar, Národní Podnik . After all, the relevant context includes how the words used would present themselves to persons who read them and form a view about what they connote: Self Care.

1. Section 101 provides the Registrar with the discretion to remove the Trade Mark from the Register in respect of any, or all, of the goods and services for which it is registered. Relevantly, the section also provides (notes omitted):

(3) If satisfied that it is reasonable to do so, the Registrar or the court may decide that the trade mark should not be removed from the Register even if the grounds on which the application was made have been established.

1. Willoughby provides a history of the Opponent, an Australian digital consumer based company that specialises in innovative loan offerings for consumers of up to $150,000. The Opponent is a company within the MoneyMe Group. The parent and ultimate holding company of the Opponent and the companies in the MoneyMe Group is MoneyMe Limited, a public company listed on the Australian Securities Exchange (ASX). MoneyMe Limited's controlled entities include the Opponent.
2. Willoughby states that the Opponent has an advanced technology platform named 'Horizon' for fast processing of loan applications and release of funds or credit facilities once an applicant is approved. In 2019, the Opponent developed and commenced using its artificially intelligent decision engine ('AI Engine') named 'AIden' to work with Horizon to inform and improve data-driven decision-making through artificial intelligence. AIden utilises machine learning algorithms to assess the creditworthiness of a loan applicant in real-time, based on an analysis of consumers bank statements and other profile data.
3. Willoughby claims that the Trade Mark has been used continuously for the Registered Goods and Services since 2019, exhibiting a copy of an undated PowerPoint presentation claimed to be presented in and around September 2021 to potential financiers in connection with the Opponent's warehouse funding program. Although undated, I note reference to the AIDEN AI Engine being developed on loans originating between July 2018 and June 2019 and tested upon loans funded between July 2019 and June 2020.
4. Willoughby claims that in 2022, AIden was awarded the Digital Disruptor of the year and was highly commended for Best Tech Innovation 2022 at finder.com.au's Finder Innovation Awards 2022. Willoughby exhibits evidence of these awards together with copies of submissions made by the Opponent to finder.com.au and canstar.com. Relevantly I note reference to AIden in the following manner: 'in-house modelling platform, dubbed AIDEN', 'in-house AI platform AIDEN', 'our in-house AI system, AIDEN' and 'AIDEN our proprietary Artificial Intelligence Design Engine'.
5. Willoughby exhibits seven Australian online media articles for investors concerning the Opponent dated between 21 April 2021 and 27 June 2024 which refer to the Trade Mark in the following ways: 'in-house AI system', 'artificial intelligence (AIDEN), 'its own AI technology, called Aiden', 'we own our own tech, the Aiden-backed Horizon Platform', 'its artificial intelligence application, AIDEN', 'MME created its own AI technology, called Aiden' and 'AIDEN, our artificial intelligence application'. I note in a 2021 article referring to an investor presentation by MoneyMe regarding launch of Autopay, it states 'MoneyMe highlighted its sophisticated AI technology and how this helps differentiate it from other lending providers. Built and run entirely in-house, the system uses over 150 data points to instantly assess the creditworthiness of potential customers'.
6. Willoughby states that since 2019 the Opponent has promoted the Trade Mark by virtue of an Instagram post, ASX announcements and presentations, an in-house investor showcase in April 2021 and a blog on the Opponent's website regarding the investor showcase, and annual reports for the 2021 and 2022 financial years. Willoughby exhibits copies of these promotional materials. I note the Instagram post has only 15 comments and 113 reactions and there is no indication of readership of the blog.
7. Willoughby confidentially provides the Opponent's costs for research and development of AIDEN and the future promotion of the Trade Mark including ongoing research and development of the AIden platform.

1. Catsburg states that the Applicant is one of the world's largest financial institutions and is a global leader in the development and adoption of artificial intelligence (AI) solutions in the field of finance. The Applicant's has developed a software and trading platform which it provides under the name Aiden ('Aiden Platform'). The development of the technology behind the Aiden Platform commenced as early as 2015. Catsburg exhibits printouts from the Applicant's website referring to the Aiden Platform.
2. Catsburg provides a schedule of trade mark applications and registrations for the trade mark Aiden and Aiden formative trade marks ('Aiden Marks') including the following Australia trade marks. The Goods and Services appear at Annexure A:

1. Catsburg states that the Trade Mark has been cited as an obstacle to registration of these applications and that the Applicant intends to continue using its global Aiden Marks throughout the world, including in Australia, as part of its global branding for its AI-powered trading goods and services.

1. On 4 August 2025, the Opponent filed a declaration of Simon Willoughby dated 1 August 2025 ('Willoughby 2') together with the Opponent's written submissions. Also on 4 August 2025, this office advised the Opponent that the evidence was filed out of time and a fee was required to be paid together with compelling reasons why the evidence should be considered. On 7 August 2025 the Opponent paid the required fee and provided reasons why the further evidence was not filed earlier and why it should be considered.
2. The Opponent submitted that the evidence in Willoughby 2 could not be filed by the deadline to file the EIS as the evidence did not exist as at that deadline. The Opponent claimed that the evidence contained in Willoughby 2 was limited, highly relevant and crucial to the exercise of the Registrar's discretion in favour of the Opponent.
3. The majority of Willoughby 2 is confidential, expanding upon the Opponent's confidential plans provided in Willoughby [21] for promoting the trade mark in the future including ongoing research and development of the AIden platform.

(a) information that is available to the Registrar is relevant to proceedings before the Registrar; and

(b) the Registrar has reason to believe that the information is not known to a party to the proceedings; and

(c) the Registrar proposes to take the information into account in making a decision in the proceedings;

(e) give the party a reasonable opportunity to make representations about the information.

(2) For the purposes of paragraph (1)(e), the representations may be made in writing or at a hearing or by such other means as the Registrar reasonably allows.

1. In Fed Square Pty Ltd v Federation IP Pty Ltd, Hearing Officer Wilson said:

In order to determine whether or not to take information into account under Reg 21.19 it is necessary for an administrative decision maker to consider the nature and significance of the evidence put forward. If that material is of high probative value, that will be a crucial factor in the determination of whether it should be admitted.[21]

The implications of evidence not being filed at all should inform the parties' decisions made around the preparation of the evidence, and it is not sufficient to simply show that such evidence is relevant and there is a possibility that the opposition may fail without it. To allow regulation 21.19 to be utilized in that way may render the requirements for the current extension of time provisions otiose. Rather, there must be further circumstances that make it reasonable for the material to be taken into account.[22]

1. Considerations under reg 21.19 place an obligation of procedural fairness on the Registrar who may, in the context of hearing proceedings before her, exercise 'some latitude as to what matters she may take into account in reaching decisions.'[23]
2. The Trade Marks Office Manual of Practice and Procedure provides some guidance on the factors to be considered in deciding whether to allow late filed evidence. Issues the Opponent needs to address include:[24]
   • Why the evidence was filed after the due date;
   • If the evidence stage in proceedings has concluded and the matter is ready for determination, why the evidence was not filed earlier;
   • What the evidence shows;
   • Why that information is crucial to the delegate's decision;
   • Why it is in the public interest to have the information considered; and
   • What is the balance of convenience for the parties if the information is considered.
3. In short, the Opponent must make a compelling case in favour of the discretion being considered. The Opponent has provided the following to support a compelling case:
   • the evidence was not available before the due date as it did not exist;
     • the evidence is limited in scope;
     • the evidence is highly relevant and crucial to the exercise of the Registrar's discretion not to remove the Trade Mark; and
     • the evidence was provided to the Applicant seven days before the due date for the Applicant's written submissions and the Applicant has commented on the evidence.
4. The Applicant submits that Willoughby 2 is not probative as it contains little detail and there is no explanation for the assertion that the evidence did not exist earlier. Further the Applicant submits that the Opponent is attempting to now rely upon an objective commitment to use the Trade Mark in circumstances where actual use has not yet commenced, even though Willoughby claims actual use rather than any objective commitment to use the Trade Mark. The Applicant concludes that the use contemplated in Willoughby 2 would still not rise AIden to the level of use as a trade mark in respect of the Registered Goods and Services as the Opponent does not trade in the Registered Goods and Services.
5. I do not agree with the Opponent that Willoughby 2 is highly relevant and crucial to the exercise of the Registrar's discretion not to remove the Trade Mark. Willoughby 2 barely expands upon the Opponent's confidential plans in Willoughby [21] for promoting the trade mark in the future. Further, I find that both Willoughby 2 and Willoughby [21] are nothing more than unsupported assertions. If Willoughby 2 is an expansion of plans, one would expect that from 19 September 2024 when the EIS was filed to 1 August 2025, the date of execution of Willoughby 2, there would have been some form of documentary evidence to support the Opponent's claimed expansion plans. Furthermore, for reasons that will become apparent, Willoughby 2 is not crucial to the outcome of these proceedings.
6. In conclusion, I am satisfied that it is not appropriate in the circumstances of this case to allow Willoughby 2 into these proceedings under reg 21.19. Accordingly, this decision will only have regard to the evidence which has been properly filed.

1. In summary, the SGP claims that the Opponent has used and promoted the Trade Mark or a substantially identical trade mark, in Australia in connection with various goods and services covered in classes 9 and 42 during the Relevant Period.
2. The Opponent submits the following:
   • the EIS clearly demonstrates that the Opponent has used the Trade Mark for the Registered Goods and Services during the Relevant Period. The use of the Trade Mark in the contexts disclosed indicates a connection between the Opponent and the Registered Goods and Services. The Trade Mark is a concocted word with no descriptive meaning and therefore consumers would only understand the function of the Trade Mark as a badge of origin. The Opponent has used the Trade Mark in the course of trade;
   • since the Opponent commenced using the Trade Mark it has made significant investment into research and continued development of the AIden platform. The Opponent has shown use of the Trade Mark on the Registered Goods and Services by virtue of the extensive use of the Trade Mark in the Relevant Period and the significant investment by the Opponent; and
   • The Opponent has shown use of the Trade Mark including use of AIDEN and Aiden which is use of the Trade Mark with additions or alterations which do not substantially affect the identity of the Trade Mark, given the differences are utterly de minimis.
3. The Opponent also submits that even if non-use is established, the Registrar's discretion should be exercised in the Opponents' favour to retain the Trade Mark for all the Registered Goods and Services.
4. The Applicant submits that:
   • none of the use of AIden shown by the Opponent was use for the purpose of distinguishing any goods or services (of any description) in the course of trade;
     • ➢ The activities undertaken by MoneyMe in an effort to raise finance or attract investors are not activities which take place for the purpose of distinguishing goods or services in the course of trade;
     • ➢ The submissions made by MoneyMe to companies which issue awards are not activities which take place for the purpose of distinguishing goods or services in the course of trade. Further the companies are not customers (or potential customers) for MoneyMe's goods or services, and MoneyMe was not dealing with those companies in that context. In addition, the submissions are marked 'Internal use', and it is unlikely that those documents were ever seen outside of the companies which issue the awards; and
     • ➢ annual reports to shareholders and ASX announcements are not for the purpose of distinguishing goods or services in the course of trade.
   • even if any of the Opponent's examples of use of the Trade Mark constitute use as a trade mark, it would not be use in relation to the Registered Goods and Services as MoneyMe trades in lending services and not the Registered Goods and Services. MoneyMe's AIden platform is an internal process used by MoneyMe to decide whether to lend a person money. The Aiden platform is not customer facing and MoneyMe does not provide any software goods or services in the course of trade. There is a complete absence of any evidence of MoneyMe using the Trade Mark in any materials or communications directed towards customers or potential customers for the purpose of distinguishing any software-related goods or services from the goods or services of other traders.
5. I agree with the Opponent that use of AIDEN and Aiden is use of the Trade Mark with additions or alterations which do not substantially affect the identity of the Trade Mark. A trade mark 'with additions or alterations that do not substantially affect the identity of the trade mark' has been interpreted to mean that the trade marks being compared must be substantially identical.[25] On a side by side comparison of the words AIDEN, AIden and AIden, I am satisfied that a total impression of similarity emerges from this comparison and the marks are substantially identical.[26]
6. I do not agree with the Opponent that the Opponent has used the Trade Mark for the Registered Goods and Services during the Relevant Period as a trade mark, namely as a 'badge of origin' to indicate a trade connection between goods and services and the trade mark owner in the course of trade.
7. On the evidence, I consider that the AIden program has been developed by the Opponent for the Opponent. It is not providing a program available for use by anyone other than the Opponent. The Opponent submits that AIden is not a back-office program. Rather it is a program essential to the Opponent's business and a key plank of the Opponent's business which is to provide lending services. To provide these lending services, the Opponent assesses and credit checks customers using the AIden program and this credit assessment is provided to customers. The Opponent has not provided any evidence that the AIden program is promoted to customers, that customers are exposed to the AIden program, that there is any interaction at all by the customer with the AIden platform or that customers know of the Trade Mark. Further, the Opponent has not provided any evidence as to how the Registered Goods and Services are provided to customers.
8. In my view, the Opponent uses the Trade Mark as the name of its in-house program but not as a badge of origin in the course of trade. 'Course of trade' has a broad meaning, consistent with 'for the purposes of trade',[27] which necessarily excludes personal use.[28] The Opponent's use of the Trade Mark is personal to the Opponent rather than in the 'course of trade'. The Opponent has no intention to trade, licence or allow others to use the AIden program as it is this program that gives the Opponent its 'edge' over its competition in the lending services market.
9. As the High Court said in W D & H O Wills (Australia) Ltd v Rothmans Ltd:

The word "trade is, as their Lordships have told us in the Aristoc Case, a very wide word, but the use of a trade mark for the purposes of trade would have to be at least a use of the mark to indicate the origin of the goods. As Lord Simonds said of the analogous words "in the course of trade", the use of the mark would have to be a use for the purposes of trade in the goods.[29]

1. The purpose and nature of the Opponent's use is clear and members of the public would understand that the AIden program is not something that consumers or other traders can use, for a fee or otherwise.
2. Further, in respect of the Registered Services, a service is an activity where one party provides services to another party in trade or commerce, usually for a fee. It is not an activity of providing a service to oneself. The phrase 'in trade or commerce' means activities or conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character.[30]
3. The Australian Oxford Dictionary defines 'service' as, inter alia 'the act of helping or doing work for another or for a community etc.'[31] and 'assistance or benefit given to someone'.[32] The Macquarie Dictionary Online defines 'service' as, inter alia, 'an act of helpful activity and the supplying or supplier of any articles, commodities, activities etc required or demanded'.[33]
4. In Adamson v New South Wales Rugby League Ltd, Wilcox J observed that:

As a reference to any standard dictionary will show, although the word "services" has a wide application, it imports always the notion of some assistance or accommodation being made available by one person to another.[34]

1. I am satisfied that the Opponent has not provided the Registered Goods and Services to anyone in the course of trade other than itself at anytime, including in the Relevant Period. As such, the ground for removal under s 92(4)(b) has been made out in respect of the Registered Goods and Services.
2. As the ground for removal under s 92(4)(b) has been made out it is unnecessary to consider whether the Opponent had an intention to use the Trade Mark at the date upon which the Registration was filed under s 92(4)(a).[35]

1. For the sake of completeness, I note the Opponent has not provided evidence of any circumstances prevailing during the Relevant Period which might have been an obstacle to use of the Trade Mark for the Registered Goods and Services. I accordingly find no case under s 100(3)(c) has been established.
2. Given I have decided that the Trade Mark be removed for the Registered Goods and Services, I must consider whether it is appropriate to exercise discretion not to remove the Trade Mark for any of the Registered Goods and Services.

1. The question to be asked is whether I am positively satisfied that it is reasonable not to remove the Trade Mark for the Registered Goods and Services, even though the Opponent has not established use of the Trade Mark during the Relevant Period in respect of any of the Registered Goods and Services.
2. The Opponent bears the onus of establishing that the discretion should be exercised in its favour: it is not for the Applicant to establish that it should not.[36]
3. The discretion provided by this section is very broad. In PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd,[37] the Court made the following observations 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.[38]

1. The discretion factors broadly fall under 3 headings:
   • the interests of the owner of the trade mark;
   • the interests of the applicant for removal; and
   • the public interest.[39]
2. The Opponent argues in favour of the exercise of the discretion on the basis of:
   • the EIS clearly shows that the Trade Mark has not been abandoned;
   • the Opponent describes its intentions and its developments in conformance with those intentions;
   • the Opponent has invested significant funds into the research and development and promotion of AIden and would suffer adverse legal and financial consequences if the registration for the Trade Mark was removed from the Register;
   • the Applicant has not provided any use of the Aiden Marks in Australia and has not established any reputation in the Aiden Marks in Australia. Thus, the Applicant has not established any basis that the Applicant would be significantly disadvantaged if the Trade Mark was not removed from the Register; and
   • given the Opponent's extensive use of its Trade Mark for the Registered Goods and Services, its ongoing use and development of the Trade Mark in respect of the Registered Goods and Services and the apparent lack of any use of the Aiden Marks, the Opponent considers a real and tangible risk of deception or confusion on the part of Australian consumers would arise if the Trade Mark was removed and the Applicant's Applications were allowed to proceed to registration. The removal of the Trade Mark for the Registered Goods and Services is therefore not in the public interest and serves no useful purpose.
3. The Applicant argues against the exercise of the discretion on the basis of:
   • the Opponent has not used the Trade Mark in the Relevant Period, therefore there is no good reason for the Trade Mark to remain registered. MoneyMe's interest in using the name AIden for an internal process is not relevant as it is not trade mark use;
   • the Opponent has not established that it has a reputation in relation to AIden and even if it could, it would only be a reputation held amongst MoneyMe's own shareholders and potential investors;
   • if the Trade Mark were to be allowed to remain on the Register, that would be contrary to the public interest because it would compromise the integrity of the Register;
   • the Applicant has developed a suite of transformative AI-powered trading solutions and related services under the name Aiden and has applied to register the Aiden Marks in Australia. Notably, the Applicant has already obtained registration in relation to services in classes 35 and 36;
   • the Opponent could not abandon the Trade Mark as it never adopted and used the Trade Mark in the first place. In addition because it has never used the Trade Mark, it is difficult to see how the removal of the Trade Mark could have any impact on the investments in research and development and non-trade mark promotion of AIden; and
   • the Applicant cannot be criticised for seeking removal from the Register of any unused trade marks that are an impediment to registration of its own mark(s) and before engaging in substantial use of its mark(s) in Australia.
4. In my view, as the Opponent is not using AIden as a trade mark, removal of the Trade Mark for the Registered Goods and Services would not affect the Opponent's trading or business as the Opponent could still use AIden to refer to its in-house program. Further, I am not persuaded by the Opponent's unsupported assertions concerning the future use of AIden. I am not satisfied there is a concrete indication of a future plan to use AIden as a trade mark in the course of trade in respect of the Registered Goods and Services. I am therefore satisfied that removing the Trade Mark will not have an impact on the Opponent's ability to continue to use AIden for its current and future trading activities.
5. In contrast, as the Applicant has filed the Aiden Marks in Australia for computer software platforms, given the similarity of the Aiden Marks to the Trade Mark, not removing the Registration will adversely affect the Applicant's private interests in obtaining registration of the Aiden Marks. Further while the Opponent submits that the Applicant has not provided any use of the Aiden Marks in Australia and has not established any reputation in the Aiden Marks in Australia, this is understandable given that the Registration is in force in respect of the Registered Goods and Services.
6. There is a public interest in maintaining the integrity (or 'purity') of the Register which generally demands that unused trade marks be removed. In Health World Ltd v Shin-Sun Australia Pty Ltd, on the subject of the condition of the Register, the Court said:

[T]he legislative scheme reveals a concern with the condition of the Register of Trade Marks. It is a concern that it have "integrity" and that it be "pure". It is a "public mischief" if the Register is not pure, for there is "public interest in [its] purity". The concern and the public interest, viewed from the angle of consumers, is to ensure that the Register is maintained as an accurate record of marks which perform their statutory function - to indicate the trade origins of the goods to which it is intended that they be applied.[40]

1. The question of the public interest arises in the determination whether confusion would be caused by removing the Registered Goods and Services of the Trade Mark. Thus, while the 'purity' of the Register is a major aspect of the public interest, another major aspect is the minimisation of the likelihood for the public to be deceived or confused as to the trade source of goods and services bearing a trade mark.
2. The decision of the Full Court of the Federal Court in RB (Hygiene Home) Australia Pty Ltd v Henkel Australia Pty Ltd ('RB')[41] discussed the public interest in avoiding confusion amongst consumers in the exercise of the discretion under s 101(3). The Court held that non trade mark use was relevant to the discretion where it engendered an association between the mark and the minds of consumers. The Court said:

Leaving that to one side, her Honour's observation does not account for the substance of the position being put by the appellants, which was that even if the court found that there had been no independent trade mark use of the 311 mark, nonetheless there was a sufficient association between that mark and consumers such that permitting another trader to use the 311 mark would be likely to cause confusion.[42]

1. Here, while I have decided that the Opponent has not used the Trade Mark as a trade mark, I am also satisfied that the Opponent's evidence of use of AIden is insufficient to establish a significant reputation in the Trade Mark. The evidence does not support a conclusion that consumers recognise AIden nor that there is a sufficient association between the Trade Mark and consumers such that permitting another trader to use the Trade Mark would be likely to cause confusion. The use may well have been since 2019, before, after and during the Relevant Period, but nonetheless, the evidence is not of a calibre sufficient to persuade me to exercise my discretion to allow the Trade Mark to remain on the Register.
2. On balance, in light of the above considerations, I am not persuaded that the Opponent has provided justification to allow the retention of the Trade Mark on the Register for the Registered Goods and Services. I am not satisfied that the removal of the Registration would result in consumer confusion or practically impact on the interests of the Opponent. Given the importance of the integrity of the Register, I do not consider it appropriate to exercise my discretion in favour of the Opponent not to remove the Registration.

1. 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 Registered Goods and Services. I therefore direct that registration number 1994664 be removed from the Register for all the Registered Goods and Services.
2. In the event of an appeal from this decision, the registration shall not be removed 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.

1. 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.

Class 35: Market analysis and research using an artificial intelligence computer platform

Class 36: Financial services, namely, trading derivatives, foreign currency exchange services, foreign exchange transactions, foreign trade information and consultation services, commodity trading, on-line real time currency trading, trading of overseas market securities futures, options trading, brokerage of shares, stocks, and bonds, securities lending, all using an artificial intelligence financial trading computer platform; Financial analyses of stock exchange information using an artificial intelligence financial trading computer platform; Financial investment analysis and stock research using an artificial intelligence financial trading computer platform; Financial investment in the field of securities using an artificial intelligence financial trading computer platform; Management of portfolios of transferable securities using an artificial intelligence financial trading computer platform; Management of portfolios comprising securities; private equity fund investment services; equity capital investment

Class 42: Platform as a service (PAAS) featuring a financial trading computer software platform using artificial intelligence for use in the field of financial services for trading derivatives, foreign currency exchange services, foreign exchange transactions, foreign trade information and consultation services, commodity trading, on-line real time currency trading, trading of overseas market securities futures, options trading, brokerage of shares, stocks, and bonds, brokerage of shares and other securities; Platform as a service (PAAS) featuring a financial equity trading computer software platform that automatically adjusts financial trading portfolios to changing trading conditions in real-time using an artificial intelligence computer platform; Platform as a service (PAAS) featuring a financial equity trading computer software platforms that provides the ability to automatically navigate and adjust to market conditions in real-time using hundreds of pre-programmed inputs and calculations to execute financial trading decisions based on live market information

Class 42: Platform as a service (PAAS) featuring a financial trading computer software platform using artificial intelligence for use in the field of financial services for trading derivatives, foreign currency exchange services, foreign exchange transactions, foreign trade information and consultation services, commodity trading, on-line real time currency trading, trading of overseas market securities futures, options trading, brokerage of shares, stocks, and bonds, brokerage of shares and other securities; Platform as a service (PAAS) featuring a financial equity trading computer software platform that automatically adjusts financial trading portfolios to changing trading conditions in real-time using an artificial intelligence computer platform; Platform as a service (PAAS) featuring a financial equity trading computer software platforms that provides the ability to automatically navigate and adjust to market conditions in real-time using hundreds of pre-programmed inputs and calculations to execute financial trading decisions based on live market information; Providing online non-downloadable web-based applications using artificial intelligence to provide real-time, proactive capital markets and financial analysis, financial interpretation, as well as financial research, all functions to provide trading insight recommendations and transparency in the field of securities trading and investment

[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').

[2] Per s 93(2) prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) sch 1, pt 3 as applies in the present matter. The updated s 93(2) applies to trade marks filed from 24 February 2019 onwards.

[4] 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.

[6] [1998] FCA 440 (citations omitted).

[7]Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [17].

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

[10] 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 Brown).

[11] 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).

[12] Nodoz (n 8); Re Trina Trade Mark [1977] RPC 131.

[13] Coca-Cola Co v All-Fect Distributors Ltd [1999] FCA 1721, [19] (Black CJ, Sundberg and Finkelstein JJ).

[14] E & J Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15, [42] (French CJ, Gummow, Crennan and Bell JJ).

[15] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [23] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).

[16] Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd [1963] HCA 66; (1963) 109 CLR 407, 425.

[17] [2010] FCAFC 117, [19] (Stone, Gordon and Mckerracher JJ) (citations omitted).

[18] [2006] FCAFC 132, [77] (Heerey, Allsop and Young JJ) (citations omitted).

[19] Anheuser-Busch Inc v Budejovicky Budvar [2002] FCA 390 (Allsop J).

[20] [2024] FCAFC 65, [71] - [74] (Burley, Jackson and Downes JJ) (citations omitted).

[21] [2015] ATMO 42, [50].

[23] Horizons (Asia) Pty Ltd v Enagic Australia Pty Ltd and Enagic Co., Ltd [2016] ATMO 26, [22] (Hearing Officer Kirov).

[24] Part 51.2.5.

[25] PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd [2021] FCAFC 128, [161] (Jagot, Nicholas and Burley JJ); Optical 88 Limited v Optical 88 Pty Limited (No 2) [2010] FCA 1380, [256] (Yates J); Symphony Holdings Limited v Skins IP Limited [2022] FCA 1238, [20] (Raper J).

[26] Carnival Cruise Lines Inc v Sitmar Cruises Limited [1994] FCA 936, [62] (Gummow J).

[27] W.D. & H.O. Wills (Australia) Ltd v Rothmans Ltd [1956] HCA 15; (1956) 94 CLR 182 (Dixon CJ, McTiernan, Williams, Webb and Taylor JJ) ('Wills').

[28] Oakley Inc v Franchise China Pty Ltd [2003] FCA 105 (Drummond J).

[30] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 604 (Mason C.J, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[31] Australian Oxford Dictionary (2 ed) (online at 9 September 2025) 'services' (def. 1).

[32] Australian Oxford Dictionary (2 ed) (online at 9 September 2025) 'services' (def. 3).

[33] Macquarie Dictionary (online at 9 September 2025) 'services' (def. 2).

[34] [1991] FCA 425; (1991) 31 FCR 242, [43].

[35] Section 94(4)(a)(i), (ii) or (iii).

[36] Austin Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [35] (Jacobson, Yates and Katzmann JJ).

[37] [2021] FCAFC 128 (Jagot, Nicholas and Burley JJ).

[38] Ibid [153] (emphasis altered) (citations omitted).

[39] Societe Anonyme des Eaux Minerales d'Evian v The Yogurt Co Pty Ltd [2012] ATMO 53, [33] (Hearing Officer Thompson).

[40] [2010] HCA 130, [22] (French CJ, Gummow, Heydon and Bell JJ) (citations omitted).

[41] [2024] FCAFC 10 (Nicholas, Burley and Hespe JJ).