30 September 2026
A business can be actively using a trade mark and still run into trouble if it cannot establish who was legally using the mark.
A recent Australian Trade Marks Office decision is a useful reminder that evidence of use is only part of the picture. The connection between that use and the registered trade mark owner also matters.
In Longevity Personal Training Pty Ltd v Milmore Pty Ltd as trustee for EZB Trust [2026] ATMO 155, a registered trade mark was targeted for removal on the basis of non-use.
There was evidence that the LONGEVITY trade mark had in fact appeared in the marketplace. That evidence included website material, advertising, social media, invoices and revenue information.
The problem was not simply whether the mark had been used.
The problem was establishing who had used it.
The evidence referred to a number of different names and entities, including Longevity Personal Training Pty Ltd, Longevity Exercise Physiology, Longevity Exercise Physiologists and a trust-related bank account. The Delegate was not satisfied that the evidence established how those entities and names were connected or which entity had actually used the registered trade mark.
The opposition to removal failed and the registration was ordered to be removed.
That is a significant outcome because the applicant seeking removal had effectively accepted that the mark was being used. The problem was proving that the relevant use was attributable to the registered owner.
Why does the identity of the trade mark user matter?
A registered trade mark may be owned by one entity while the business using the brand is operated by another.
That is common.
For example, a group may have:
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an IP holding company that owns the trade marks;
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an operating company that sells the products or services;
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related entities using the same brand;
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a trust or trustee involved in the business structure;
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franchisees, distributors or licensees using the mark.
Those arrangements do not automatically create a problem.
But the legal relationship behind the trade mark use needs to be clear.
If a registered owner is relying on another entity's use to maintain its registration, it may become necessary to demonstrate why that use counts as authorised use for trade mark purposes.
Simply producing screenshots showing that the brand appeared online may not answer that question.
What evidence can become important in a trade mark non-use dispute?
Businesses often think of trade mark evidence as photographs of products, websites, advertising or social media posts.
Those can be important, but so can the documents sitting behind the brand.
Depending on the circumstances, relevant records may include:
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licence agreements;
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intercompany agreements;
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corporate structure records;
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invoices;
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distribution arrangements;
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franchise agreements;
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evidence of control over use of the brand;
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records showing which company contracted with customers;
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records explaining trading names and trust structures.
The point is not to create paperwork for its own sake.
It is to make sure the legal ownership of the trade mark and the commercial use of the brand line up.
This can become a problem after a restructure
The risk can be particularly easy to overlook where a business has changed structure over time.
A company might start using a brand and later transfer the trade mark to another entity. An IP holding company might be inserted into the group. A business may begin operating through a trust. A new subsidiary might take over customer contracts.
The brand continues to look exactly the same to the outside world.
Legally, however, the entity using it may have changed.
If those arrangements are not documented, proving trade mark use several years later can become much harder.
The practical lesson
Businesses should periodically ask two separate questions:
Who owns our trade marks?
and
Which entity is actually using them?
If the answer is not the same entity, the next question should be whether the relationship between the two has been properly documented.
The Longevity decision has now been appealed to the Federal Court, so the ultimate position may change.
But the practical lesson remains useful.
Protecting a brand does not stop when the trade mark is registered.
Businesses also need to maintain a clear chain between trade mark ownership, authorised use and the evidence that proves it.
