Trade mark decision

BL Number
Decision date
4 September 2007
Hearing Officer
Mr D Landau
Applicant for Revocation
KBD Pty Ltd
Registered Proprietor
EMS Medical Limited
Section 46(1)


Section 46(1): Revocation allowed in part.

Points Of Interest

  • None


The applicant for revocation claimed non-use in respect of three five year periods ending on 15 May 1983, 12 November 2003 and 23 July 2006. The application was filed on 24 July 2006.

The first five year period followed registration of the mark in suit. The Hearing Officer established that registration occurred on 14 June 1978 so the claim in respect of the first period failed.

As regards the latter periods a licensee filed details of use of the mark KYLIE from 1989 and continued use after it signed the license agreement in 2004 in respect of article of underclothing. Use claimed by the registered proprietor was in respect of sanitary clothing and the Hearing Officer noted that such goods are proper to Class 5. This use did not, therefore, assist the proprietor.

The registration was revoked in respect of all goods other than article of underclothing and the revised specification therefore reads as follows:

“Articles of underclothing; but not including articles of underclothing adapted for sporting activities.”

Full decision O/256/07 PDF document67Kb