Freshfood Holdings Pte Limited v Pablo Enterprise Pte Limited (No 2) [2021] FCA 1404

Freshfood Holdings Pte Limited v Pablo Enterprise Pte Limited (No 2) [2021] FCA 1404

FreshFood did not use the PABLO Mark during the relevant period but the Court exercised its discretion under s 101(3) of the Trade Marks Act 1995 (Cth) not to remove the mark from the Register, due to the absence of abandonment, genuine subsequent sales, and residual reputation.

Parties
Appellant: Freshfood Holdings Pte Limited; First Respondent: Pablo Enterprise Pte Limited; Second Respondent: Registrar of Trade Marks
Jurisdiction
Australia
Judgment Date
12 November 2021
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal allowed
Legal Topics
Trade Marks, Non Use Application, Registrar's Discretion, Removal of Trade Marks
Intellectual Property Trade Marks Non Use Application Registrar's Discretion Removal of Trade Marks

Case Brief

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Parties

Freshfood Holdings Pte Limited

Appellant

Pablo Enterprise Pte Limited

First Respondent

Registrar of Trade Marks

Second Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether non-use of trade mark within the relevant period under s 92(4)(b) of the Trade Marks Act 1995 (Cth) was established
  2. 2 Whether the Court should exercise its discretion under s 101(3) of the Trade Marks Act 1995 (Cth)

Ratio Decidendi

FreshFood did not use the PABLO Mark during the relevant period but the Court exercised its discretion under s 101(3) of the Trade Marks Act 1995 (Cth) not to remove the mark from the Register, due to the absence of abandonment, genuine subsequent sales, and residual reputation.

Court Disposition

Appeal allowed

Orders

  • The appeal be allowed.
  • The decision of the delegate of the Registrar of Trade Marks dated 17 December 2020 be set aside.