Hungry Spirit Pty Limited ATF The Hungry Spirt Trust v Fit n Fast Australia Pty Ltd  FCA 883 (23 June 2020)
Successful appeal by Hungry Spirit
Successful appeal by Hungry Spirit.
By decision dated 18 February 2020 reported here, a delegate of the Registrar considered Hungry Spirit was partly successful in its opposition to an application for removal of its trademark registration for MOVE. The registration was limited to goods and services in relation to training in manual handling, injury prevention and management, risk and change management, leadership, health, wellbeing and biomechanical fitness in the workplace
Shortly after filing the appeal, the parties reached a settlement and asked the Court to make consent orders providing that the appeal be allowed, the decision of the delegate be set aside, and that the Registrar allow the MOVE trade mark to remain registered for all goods and services originally covered by the registration, without the limitation directed by the delegate.
The Registrar did not oppose the consent orders being sought and so Burley J upheld the appeal and granted the orders sought.
His Honour noted an appeal is a hearing de novo where the court approaches the matter for the first time, not in order to decide whether the delegate as an executive decision maker was right or wrong, or otherwise to correct error in the executive decision, but to deal with the subject matter for the first time. The non-use applicant is the moving party and is required to initiate and prosecute a removal application. Ultimately it is for the applicant for removal to persuade the Registrar of the appropriateness of any order made. This remains the situation despite the fact the appeal was initiated by Hungry Spirit and it carries the onus of rebutting the allegation of non-use.
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