Registration of a trade mark can be cancelled if the trade mark is not used. Use must be within three years of registration under section 92 of the Trade Marks Act (Cth) 1955. But what level of use is required? Many court decisions have turned on this question.
We'll examine here the recent High Court of Australia decision, E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15 (19 May 2010).
Gallo Winery is a Californian company. It is one of the largest wine producing companies in the world. Gallo became the owner of Australian trade mark number 787765 for BAREFOOT in 2005. The mark was for "wines" in class 33 and was originally registered from 9 March 1999 by Michael Houlihan, trading as Barefoot Cellars.
In 2007 Gallo took legal action alleging infringement by Lion Nathan Australia Pty Ltd for use of BAREFOOT or BAREFOOT RADLER for beer.



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