NEGRO INTERNATIONAL PTY LTD V WINSTONS WINE PTY LTD [2014] ATMO 102

This matter concerned an application by Winston Wine Pty Ltd to restrict, on the basis of non-use, a registration for “alcoholic beverages” in class 33 to “gin”.

The registered owner, Negro International Pty Ltd (Negro), opposed the removal of its registration and sought to establish use of the mark in relation to wines during the relevant period.

The Hearing Officer noted that within Negro’s evidence were invoices purporting to be related to wine sales that were actually listed against a vermouth product code.

Negro argued that one “dodgy” invoice should not taint the remaining evidence. However, the Hearing Officer was not convinced about this argument and commented as follows:

“While I can accept that in the real world of small business, not all accounting demonstrates the acme of perfection; however, it is incredible to believe that it is an accident that every instance of use sought to be established contains the same accidental use of a product code relating to TOSO vermouth”.

The partial removal action was successful and the trade mark is to be removed for all goods in respect of which it is registered other than “gin”.

To view the Office decision, click here.