1. I am satisfied that the authority in Trident is applicable to much of the situation before me. There is a clear unity of purpose with the Opponent and the various companies that are outlined in the ASIC print outs. These companies are widely publicized through the Opponent's website www.tmrw.com.au and through the various social media accounts, most of which bear the Trade Mark. I believe, on the balance of probabilities, that the claim in Lee 1 [33] that the website and social media accounts belong to the Opponent is not inconsistent with the evidence before me. There is a unity of purpose between the various corporate entities being to maximise sales and to enhance the value of the brand. While there is no clear proof which one of the entities owns the social media accounts or website, it is likely that whichever of the entities own them, they are under the control of the Opponent. Thus, use of the Trade Mark or any substantively identical mark would be use authorised by the Opponent as per section 8 of the Act.
2. Regardless of this, there is evidence provided by the Opponent and related entities which may also be assessed to determine whether the Trade Mark had been used during the relevant period. I reiterate that a single bona fide use of the Trade Mark in the course of trade during the relevant period may be sufficient to rebut the allegation under s 92(4)(b).[12]
3. In regard to the second concern raised by the Applicant that the Opponent has not used the Trade Mark as registered, I turn to section 7 of the Act which states:

(1) If the Registrar or a prescribed court, having regard to the circumstances of a particular case, thinks fit, the Registrar or the court may decide that a person has used a trade mark if it is established that the person has used the trade mark with additions or alterations that do not substantially affect the identity of the trade mark.

1. The Opponent's registered trade mark is the plaintext four letter combination TMRW. A close consideration of the Opponent's evidence does show that the Opponent has used the Trade Mark along with a number of more stylized variants being the examples below:

1. When I compare the respective trade marks with the plain text Trade Mark side-by-side, I am satisfied that the Opponent's use of the above Variant 1 'TMRW Music' would not be considered an alteration which would substantially affect the identity of the registered Trade Mark. The trade marks are the same four letters which are easily read as T M R W. Apart from the addition of a common and descriptive word MUSIC when attached to musical entertainment services. As such, I take use of the above Variant 1 by the Opponent to be use of the Trade Mark. [13]
2. When it comes to Variant 2, I am not persuaded it does not have alterations which would substantially affect the identity of the registered Trade Mark. Given its new structure with the letters TM atop the RW, it is possible that Variant 2 would be pronounced differently and viewed quite differently to the Trade Mark. I do not consider use of Variant 2 as use of the Trade Mark.
3. Finally, I turn to the Applicant's main contention, that the use of the Trade Mark that is demonstrated in the evidence is limited to music entertainment services. The Opponent has argued that it has used its Trade Mark on all the Partial Services during the relevant period and that music is embedded in the vast majority of entertainment services available such as sporting events, movies, theatre productions and magic shows[14] which all utilize music.
4. Turning to the Opponent's evidence of use, the Opponent claims to have used its Trade Mark on its website twrw.com.au[15], social media[16], YouTube[17], Facebook[18], Instagram[19], Tik Tok[20], Spotify[21], Events[22], Legal documents, Invoices[23], Financial statements, contracts, company email addresses (@tmrw.com.au)[24], company email signatures, stationary, letters and business cards, press releases[25], media articles[26], marketing materials[27], advertising campaigns[28], sponsorship[29], music and video credits[30], apparel worn by staff at events, downloadable content, physical media, physical posters[31] and awards.
5. The Opponent has particularly referred me to its evidence of involvement in sporting events such as golf[32], cricket[33], surfing[34], basketball[35], soccer, AFL[36], rugby[37], rugby league[38], horse racing[39], motor car racing[40] and motorcycle racing[41]. I note that the Opponent has arranged musical acts to take place at these events.
6. The Applicant has counter argued that a musical act booked to play at a sporting event does not transform the Opponent's music centric services into some broader sport related entertainment services. The Applicant further stated:

The broad-brush approach taken by the Opponent is impermissible in a non-use application. At the core of a non-use application, is the principle described by the High Court in Health World Ltd v Shin-Sun Australia Pty Ltd [2010] HCA 13; 240 CLR 590 at [22] of ensuring "purity of the Register". Consistent with that principle, the TMRW Registration should only remain for the services that were in fact offered by the Opponent during the relevant period (if any). The authorities establish that if a registration is capable of being limited to reflect the use demonstrated, without resorting to drawing "fine distinctions", then it should be so limited unless sufficient reasons to leave the registration unamended are established. There are no relevant fine distinctions proposed in the application and no demonstrated reason to leave the registration unamended in the face of non-use.

1. I agree with the Applicant. Careful consideration of the Opponent's evidence does demonstrate significant use of the Trade Mark on a wide variety of music acts and the promotion of those music acts. While I note the Opponent has engaged in sporting events to raise money for charity[42], this is common practice for many businesses and their employees and I am not satisfied that it constitutes use of the Trade Mark on sporting events in the marketplace. Overwhelmingly, the Opponent's evidence demonstrates that the Opponent's entertainment services are focused on the music industry and not on other forms of entertainment. While some of the Opponent's artists under one of its labels have created music which is often played at sporting events or are engaged to play at sporting events[43] , the Applicant is correct that this does not transform the Opponent's music entertainment services into sports entertainment.
2. The Opponent has argued that the Opponent has shown extensive continuous use in the Relevant Period in relation to all the Partial Services. The Opponent states it is not necessary to show use in 'every conceivable subcategory of the relevant registered goods'.[44] 'Some latitude is to be permitted'[45] and the question is not to be 'considered with an eye to fine distinctions between goods on the Register'.[46] Bennett J in Pioneer Computers Australia Pty Limited v Pioneer KK held:

In order to maintain the registration of a mark in respect of a category of goods, it is not necessary to establish that the mark was used on every type of product which might come within that particular term or description of goods. For example, registration with respect to clothing should not be removed if the owner does sell a range of clothing but does not sell, for example, swimwear or ties.[47]

1. However, I am not persuaded by this reasoning. Entertainment services encompass a massive and very broad international industry. Music is a particular and large portion of the entertainment industry but in no way is it the defining and major focus of what would constitute the entertainment industry. Music is broad reaching in that it can be incorporated into various entertainment venues for ambiance or to form a portion of the entertainment services on offer for an event, however, just because music is involved does not make the event a musical event. A consumer seeking to buy concert tickets to view a favorite musical artist is unlikely to mistakenly purchase tickets to a golf tournament because their favorite artist's music has been licensed to be played at the event to contribute to the ambiance. Nor is someone seeking attend a dance party featuring a favorite DJ going to purchase a gym membership because the spin class has paid royalties to play the DJ's music.
2. The case before me is not analogous to the cases the Opponent has drawn my attention to. It is not making fine distinctions between entertainment services to be satisfied that sports entertainment services, while able to incorporate musical performances, would not be considered music entertainment. Rather, I am satisfied that numerous entertainment services can exists side by side in a massive and diverse industry which changes and evolves according to new tastes by consumers, innovations in and developments in technology and entertainment.
3. I am satisfied that the Opponent has used the Trade Mark on the Partial Services only in relation to music entertainment.

1. An Opponent to an application for removal may rebut an allegation of non-use by establishing that a failure to use the mark in the Relevant Period was 'because of circumstances (whether affecting traders generally or only the registered owner of the trade mark) that were an obstacle to the use of the trade mark during that period'. The circumstances must be 'an obstacle to the use of the trade mark by the registered owner'.[48]
2. The Opponent has claimed it has used the Trade Mark and has no need to argue that there was an obstacle to use of the Trade Mark. I agree with the Opponent that is has demonstrated use of the Trade Mark during the Relevant Period on music entertainment.
3. I am not satisfied that there were any circumstances that were an obstacle to use pursuant to s 100(3)(c).

1. To exercise the discretion in s 101(3) I must be positively satisfied that, despite the lack of use or obstacles to use, it is reasonable to not remove the Trade Mark in respect of the remaining Partial Services.[49] The burden of persuasion falls in this regard falls on the Opponent.[50]
2. In coming to a decision I refer to CUB Pty Ltd (formerly Fosters Australia Ltd) v Elixir Signature Pty Ltd[51], and the factors to be considered when making a decision whether or not to exercise of the Registrar's discretion were:

(a) There had been no abandonment of the trade mark;

(b) The registered proprietors of the mark still had a residual reputation in the mark;

(c) There had been sales by the registered proprietors for goods for which removal was sought since the relevant period ended;

(d) The applicants for removal had entered the market without having taken steps to ascertain from the Register whether anyone had a right to exclude their use of the mark; and

(e) The registered proprietors were not aware of the applicant's sales under the mark.

The Opponent has ongoing continuous use of TMRW since 2017 in relation to entertainment related goods and services in classes 9, 16 and 35. Indeed, the partial removal application does not challenge the Opponent's registration and use of TMRW in relation to various entertainment related services in class 41 as well as similar and closely related goods and services in classes 9, 16 and 35.

In the recent decision Global Electrical Supplies Pty Ltd v Internet Group d.o.o Beograd[52] the opponent established use for most of the relevant electrical goods in class 9 and the Registrar's discretion was exercised to retain the registration for "similar" unused goods. As observed by the Delegate:

Justice Bennett commented in Pioneer that the factors in favour of maintaining trade marks on the Register under section 101 were less to do with the protection of those trade marks and their proprietor and 'more to do with the public interest'. The Opponent has argued that if I am not satisfied that the Opponent has used the Trade Mark for all of the Registered Goods, I should exercise my discretion not to remove the Trade Mark for any goods for which the mark has not been used given that the Opponent has 'promoted, advertised and gain a significant reputation in its electrical products sold under the trade mark' by virtue of its use of the Trade Mark for many years. The Opponent points to its sales revenue and advertising expenditure and submits that its interests would be adversely impacted by the removal of the Trade Mark from the Register 'given its long and established use' of the mark. The Opponent has clearly not abandoned the Trade Mark and has used the mark (or a mark with additions or alterations not affecting the identity of the Trade Mark) since at least 2013 for a broad range of electrical components and other goods such as ventilation fans and tools on a reasonably significant scale in terms of sales revenue. In the present case, I am most persuaded by the public interest in consumers not being confused and by the fact that I consider the Unused Goods to be similar to the Used Goods. In my opinion, electrical cables, electrical communication apparatus/cables and electrical leads are similar goods to the goods for which the Opponent has established use of the Trade Mark in the Relevant Period. The Unused Goods are likely to be sold through the same trade channels to the same class of consumer, for the same or similar purpose to the Used Goods. Moreover, it is it is not necessary to show use in relation to 'every conceivable subcategory of the relevant registered goods'. 'Some latitude is to be permitted' and the question is not to be 'considered with an eye to fine distinctions between goods on the Register'. Given the broad range of electrical components for which the Opponent has used its mark and the similarity of the Used Goods and Unused Goods, I am of the view that it is in the public interest and appropriate to exercise my discretion not to remove the Unused Goods from the registration.

1. However, I am not persuaded by this argument. The Opponent's argument that musical entertainment is so similar to the rest of the entertainment industry is not analogous to the situation above. The entertainment industry and what may be considered entertainment services is a vast and broad category. Ultimately, a customer looking for particular musical entertainment service is unlikely to accidentally purchase tickets for different entertainment such as an art exhibition, book reading, toddler dance performance or live science show. These are all forms of entertainment and while music could be incorporated into them, it would not make those other entertainment services musical entertainment. This is because the primary purpose and intent behind these example entertainment services was not to offer music entertainment to their customer. These are not similar services which would usually be provided to the same customer through the same trade channels. It is not a case of having an eye for fine distinctions should the Partial Services be limited to music entertainment.
2. The Opponent has also argued that because of the reputation it has in the Trade Mark that use by the other parties of that Trade Mark on other entertainment services would cause confusion in the marketplace. The Applicant has argued:

...there is no evidence of actual confusion. There is cogent evidence that the parties operate in very distinct industries. The submission that there is a likelihood of confusion by the use of TMRW with respect to music and TMRW SPORTS with respect to sport should not be accepted. Taking the Opponent's evidence at its highest, the "large overlap" to which it refers could only really be in relation to the Opponent booking music acts to play at sporting events. With respect, the likelihood of confusion arising in those circumstances is so remote. Consumers are accustomed to the different source of services where a music act is playing at a sporting event. There is a vanishingly small risk that someone listening to Delta Goodrem sing at the NRL will think there is any connection whatsoever between service providers. Further, the likelihood that the consumer would even be faced with the TMRW and TMRW Sports marks in those circumstances is just not made out on the evidence. What the Opponent does appears to be more "behind the scenes" and not consumer facing. That further reduces the likelihood of confusion.

1. I agree with the Applicant. The Opponent's evidence demonstrates that it has significant use within the music entertainment industry which is where its business interests exist. The Applicant has also argued that the remaining services claimed by the Trade Mark (that it does not seek removal for) would cover those services that the Opponent has demonstrated use of the Trade Mark on, so removal of the Partial Services in total should occur. I do not agree. The Opponent, having demonstrated use of the Trade Mark on music entertainment services which are covered by the broad claims in the Partial Services, has successfully defended the removal application from that subset of the Partial Services regardless of whether or not those services may also be included under other broad terms in the remaining services of the Trade Mark.
2. I am cognisant of the public interest in the Register reflecting those trade marks which are in use but balancing the relevant considerations and noting all of the evidence before me, I am not satisfied that it is reasonable remove the Trade Mark for all the Partial Services. Nor am I satisfied it is reasonable to exercise the discretion not to remove the Trade Mark for those Partial Services which are not related to music entertainment.

1. The Opponent has partially established its opposition to removal. Accordingly, I direct that the Partial Services in registration number 1845927 be limited in the following way:

Class 41: Advisory services relating to music entertainment; Arranging of music entertainment; Booking of music entertainment; Club music entertainment services; Music Entertainment; Live music entertainment; Live music entertainment production services; Management of music entertainment events; Management of music entertainment services; Organisation of music entertainment events; Organising events for music entertainment purposes; Organising of music entertainment; Organising of music entertainment and social events; Production of live music entertainment; Provision of live music entertainment; Provision of music recording studio facilities; Music recording studio services; Live music show production services; Production of music audio and/or video recordings, other than advertising; Production of musical recordings, other than advertising; Production of sound recordings, other than advertising; Music entertainment information; Music Fan club services (entertainment); Organisation of promotions (music entertainment events); Providing information, including online, about education, training, music entertainment, sporting and cultural activities; Ticket agency services (music entertainment); Providing online electronic publications for musical entertainment (not downloadable);

1. If the Registrar is served with a notice of appeal before then I direct that limitation (partial removal of the Partial Services) shall not occur until the appeal has either been discontinued 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 requested costs in this matter. However, as both parties have been successful to some extent I determine that each party should bare its own costs.

[1] Per s 93(2) prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (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.

[2] Pfizer Products Inc. v Karam [2006] FCA 1663 (Gyles J) and more recently: Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ) in respect of oppositions under s 52.

[3] Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [17] (Drummond J).

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

[6] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [23]-[25] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) (citations omitted).

[7] Act s 100(3)(a) and discussed in AgCare Biotech Pty Ltd v Crop Smart Pty Ltd [2009] ATMO 41, [10]-[21] (Hearing Officer Kirov).

[8] see pages 56-57 which show no entries for TMRW Agency, TMRW Events or TMRW Music Group.

[9] [2020] ATMO 173 (Hearing Officer Wilson).

[10] Exhibit BL-6 accompanying Lee 1 being a print out from the Opponent's website from the WayBackMachine dated 24 February 2021.

[11] [2019] FCAFC 100.

[12] Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [17] (Drummond J).

[13] I will refer to the Trade Mark and Variant 1 collectively as the 'Trade Mark' for ease of reference throughout the decision. .

[14] These are examples of entertainment services for illustrative purposes and not an exhaustive list.

[22] Exhibits BL-13 and BL-14 accompanying Lee 1

[23] Confidential Exhibit BL-12 accompanying Lee 1

[24] Confidential Exhibit BL-12 accompanying Lee 1

[26] Exhibits BL-15 and BL-16 accompanying Lee 1

[27] Exhibits BL-13 and BL-14 accompanying Lee 1

[28] Exhibits BL-14, BL-17 and BL-18 accompanying Lee 1

[31] Exhibits BL-13 and BL-14 accompanying Lee 1

[32] Confidential Exhibit BL-25 and Exhibit BL-42 accompanying Lee 1

[33] Confidential Exhibit BL-25 accompanying Lee 1

[34] Confidential Exhibit BL-25 accompanying Lee 1

[35] Confidential Exhibit BL-25 accompanying Lee 1

[36] Confidential Exhibit BL-25 accompanying Lee 1

[37] Confidential Exhibit BL-22 accompanying Lee 1 and Exhibit BL-52 accompanying Lee 2

[38] Confidential Exhibit BL-22 accompanying Lee 1 and Exhibit BL-52 accompanying Lee 2

[39] Confidential Exhibit BL-25 accompanying Lee 1 and Exhibit BL-49 accompanying Lee 2

[40] Confidential Exhibits BL-22, BL-25 and BL-27 accompanying Lee 1

[41] Confidential Exhibit BL-22 accompanying Lee 1 and Exhibit BL-52 accompanying Lee 2

[44] Global Electrical Supplies Pty Ltd v Internet Group d.o.o Beograd [2024] ATMO 151 [38]; see also Pioneer Computers Australia Pty Limited v Pioneer KK [2009] FCA 135 [138] (Bennett J).

[45] Global Electrical Supplies Pty Ltd v Internet Group d.o.o Beograd [2024] ATMO 151 [38]; Goodman Fielder Pte Ltd v Conga Foods Pty Ltd [2020] FCA 1808 [146] (Burley J).

[46] Global Electrical Supplies Pty Ltd v Internet Group d.o.o Beograd [2024] ATMO 151 [38]

[47] Pioneer [2009] FCA 135 [138]; see also Dr August Wolff GmbH & Co. KG Arzneimittel v Combe International Ltd [2020] FCA 39 [188] (Stewart J); and Global Electrical Supplies [2024] ATMO 151 [38] citing Wolff, at fn 28, noting an appeal allowed in [2021] FCAFC 8, but not on this principle.

[48] Woolly Bull Enterprises Pty Ltd v Reynolds (2001) [2001] FCA 261, [47] (Drummond J)

[49] Austin Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [44] (Jacobson, Yates and Katzmann JJ).

[51] [2013] ATMO 74 (Hearing Officer Windsor).

[52] Global Electrical Supplies Pty Ltd v Internet Group d.o.o Beograd [2024] ATMO 151 (Hearing Officer Berger).