SCOTT-DIBBEN PTY LIMITED V CANTERBURY DISTRICT HEALTH BOARD [2016] ATMO 3

Scott-Dibben opposed the removal of its registration for HEALTHPATH; HEALTH PATHWAYS (a series mark) covering medical services in Class 44. The removal application was filed by Canterbury District Health Board.

The opponent alleged that it had licenced its trade mark for use by Healthpath (a related entity) for its health related services being offered under the trade mark. Its evidence also included some examples of use of various trade marks (mostly stylised in nature) that it said were use of the trade marks HEALTHPATH or HEALTH PATHWAYS.

However, the Hearing Officer noted several discrepancies in the opponent’s evidence and noted that ‘[i]n general I find Mr Dibben’s evidence to be absent any detail or significant contemporaneous supporting documents relating to specific activity by the Opponent or Healthpath during the Relevant Period’.

Based on the lack of specific evidence of the use of the trade marks during the relevant period, the Hearing Officer found that the opposition to the non-use removal had failed. The opponent’s mark is to be removed for all of the services covered thereunder.

To view the Office decision, click here.

This article is an extract from Spruson & Ferguson’s monthly summary of Australian Trade Mark Office decisions. You can view the entire month’s summary here.