Unilever Australia Ltd v Karounos [2001] FCA 1717

Unilever Australia Ltd v Karounos [2001] FCA 1717

There was insufficient evidence to support use of the 'Real Fish'n Chips' word and device mark for goods or services other than fish in class 29 and fish and chips in class 42 during the relevant non-use period; accordingly, the mark should be removed from the Register in all other respects.

Jurisdiction
Australia
Judgment Date
07 December 2001
Procedural Posture
Trade Mark Removal Due to Non Use / Post Hearing, Orders and Reasons for Judgment
Outcome
application for removal of the trade mark allowed in part; costs awarded to applicant
Legal Topics
['trade Marks' 'non Use Removal' 'evidence and Burden of Proof']
['intellectual Property'] ['trade Marks' 'non Use Removal' 'evidence and Burden of Proof']

Case Brief

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Procedural Posture

Trade Mark Removal Due to Non Use / Post Hearing, Orders and Reasons for Judgment

Legal Issues

  1. 1 ["Whether the 'Real Fish'n Chips' word and device mark should be removed from the Register for non-use in respect of goods and services in classes 29, 30, 35, and 42, except specific items" 'Who bears the onus of establishing use after an allegation of non-use under s 92(4)(b) Trade Marks Act 1995 (Cth)']

Ratio Decidendi

There was insufficient evidence to support use of the 'Real Fish'n Chips' word and device mark for goods or services other than fish in class 29 and fish and chips in class 42 during the relevant non-use period; accordingly, the mark should be removed from the Register in all other respects.

Court Disposition

application for removal of the trade mark allowed in part; costs awarded to applicant

Orders

  • ["The Registrar of Trade Marks remove the word and device mark 'Real Fish'n Chips' from the Register of Trade Marks in respect of goods and services in classes 29, 30, 35 and 42 except fish in class 29 and fish and chips in class 42." 'Mr Karounos pay the costs of Unilever.']