ETO Group Pty Ltd v ETO Gruppe Technologies GmbH

This Federal Court decision was an appeal from a Trade Marks Office non-use ruling. A delegate had ordered ETO Group's registered class 36 trade mark to be removed from the Register. On appeal, the Court set that decision aside and dismissed the non-use application.

The result is important, but so is the way the Court got there. The appeal was not resolved after a full contested hearing on the merits. Instead, the company that had applied to remove the mark filed a submitting notice, did not continue to prosecute the case, and only wished to be heard on costs. The Registrar also did not appear. In that procedural setting, the Court treated the appeal as a fresh hearing and asked whether there was any self-evident reason not to reverse the delegate's decision. It found there was not.

ETO Group Pty Ltd owned Australian trade mark registration no. 1683956. The mark was registered in class 36 for financial services, specifically investment and brokerage services, and had been registered since 27 March 2015.

The business itself had been operating for some time. It was incorporated on 14 February 2012 under the name ETORO Group Pty Ltd and changed its name to ETO Group on 11 August 2015. It held an Australian Financial Services Licence from 1 February 2013 and operated an online foreign exchange and contracts for difference trading platform for wholesale and retail clients.

On 29 August 2023, ETO Gruppe Technologies GmbH applied to remove the registration for non-use under sections 92(4)(a) and (b) of the Trade Marks Act 1995 (Cth). On 11 February 2025, a delegate of the Registrar decided that the registration should be removed. ETO Group then appealed to the Federal Court under section 104.

ETO Group relied on evidence from Jonathan Barratt, a director, Responsible Manager and Key Person. He said the business had used the ETO brand since 2015 through its corporate name, the business name ETO Markets, and an underlying ETO brand identity across the registered mark and two additional unregistered variations. The judgment says the registered trade mark itself had been used since 2017 in dealings with wholesale clients, while the variations were used in dealings with general retail clients.

The evidence described by the Court was practical and business-facing. It included promotional banners, email signatures, promotional items, business cards, the trading platform, promotional merchandise, the Product Disclosure Statement, Financial Services Guide, Target Market Determination, client agreements and policy documents. The Court specifically noted that the registered mark itself had been used on promotional merchandise such as pens and notebooks, on client agreements for wholesale clients, and in dealings with vendors.

But by the time the appeal reached hearing, the dispute had changed shape. The respondent filed a submitting notice, submitted to any order the Court might make, and only wanted to be heard on costs. The Registrar had been notified but did not intervene. Neither appeared at the hearing. That procedural posture became central to the outcome.

The legal issue was not simply whether the delegate had made an error. The Court explained that an appeal under section 104 is a hearing de novo. That means the Court stands in the shoes of the Registrar and considers afresh whether the non-use application should succeed.

The judgment sets out the statutory framework. Section 92 allows a person to apply for removal of a registered trade mark for non-use on specified grounds. Section 100 places the trade mark owner in the position of rebutting allegations made under section 92(4)(a) or (b). Section 101 provides that if the relevant grounds are established, the Registrar or the Court may remove the mark, but also preserves a discretion not to remove it if that is reasonable. Section 104 provides the appeal route to the Court.

The practical question in this case was narrower and more procedural. Could the Court reverse the delegate's removal decision without conducting a full merits contest where the non-use applicant had filed a submitting notice, no longer wished to prosecute the application, and the Registrar did not appear? The Court considered earlier authority, including Hungry Spirit and Thomas, which dealt with similar situations.

The Court emphasised that even though the trade mark owner was the appellant, the non-use applicant remained the moving party in substance. That matters because the non-use application must still be initiated and prosecuted by the applicant for removal. The Court also considered whether there was any self-evident reason in fact or law that would prevent it from reversing the delegate's decision. In that context, the Court noted there was evidence of use of the trade mark in Australia during the relevant period and that the evidence had been explained by ETO Group.

Justice Markovic allowed the appeal. The Court set aside the delegate's 11 February 2025 decision and dismissed the non-use application made on 29 August 2023.

The Court did not say that it had finally resolved the full merits after a contested evidentiary hearing. Instead, it held that in the circumstances it was appropriate to make orders reversing the delegate's decision without determining the merits of the appeal in that way. The judgment makes that procedural basis clear.

The Court gave at least four reasons. First, ETO Gruppe Technologies remained the moving party on the non-use application but no longer wished to prosecute it and did not contest the orders sought. Second, the Registrar did not seek to intervene in the appeal. Third, the fact that the delegate had found non-use and declined to exercise the statutory discretion was not, by itself, a bar to the Court allowing the appeal. Fourth, there was evidence of use of the trade mark in Australia during the relevant period and, to the extent there was such evidence, it was explained by ETO Group.

The Court therefore concluded there was no self-evident reason not to reverse the delegate's decision. It also reserved the question of costs for written submissions if the parties could not agree, and required ETO Group to provide a copy of the orders to the Registrar and the respondent.

One useful feature of the judgment is that it identifies the kinds of materials said to show use of the ETO mark. These were not limited to major advertising campaigns. They included ordinary commercial documents and operational materials that many businesses already create as part of day-to-day trading.

The judgment refers to promotional banners, email signatures, promotional items, business cards, the trading platform, promotional merchandise, the Product Disclosure Statement, Financial Services Guide, Target Market Determination, client agreements and policy documents. It also specifically notes use of the registered mark itself on promotional merchandise such as pens and notebooks, on client agreements for wholesale clients, and in dealings with vendors.

That is practically important. In non-use disputes, businesses often assume they need a dramatic marketing record to defend a registration. In reality, the evidence may come from routine customer-facing and supplier-facing documents, provided those documents show the registered mark being used in Australia in connection with the relevant goods or services.

The judgment also shows the importance of precision. Mr Barratt's evidence distinguished between the registered trade mark and two additional variations used with different client groups. That distinction can be critical. A business may feel it is obviously using its brand, but the legal question can be narrower: was the exact registered mark used, or only a variation? Was it used for the registered services, or only in a broader corporate or promotional sense? Those questions should be checked early, before a dispute escalates.

The first point is evidence discipline. If your business owns registered trade marks, keep a practical evidence file. Save dated screenshots, sample agreements, disclosure documents, invoices or vendor communications where relevant, platform images, brochures, merchandise photos and other materials showing the mark used in Australia. If your registration covers services, make sure the documents connect the mark to those services, not just to the company generally.

The second point is brand consistency. If you use several versions of a brand, such as a word mark, a stylised logo and colour variants, do not assume they are interchangeable for non-use purposes. This case records a distinction between the registered mark and other variations. Businesses should periodically compare what is actually being used in market with what is registered.

The third point is procedural awareness. A delegate's decision is important, but it is not always the final word. On a section 104 appeal, the Court hears the matter afresh. Here, the respondent's decision not to prosecute the non-use application was highly significant. That does not mean every appeal will succeed if the other side steps back, but it does mean the procedural posture of the case can materially affect the result.

The fourth point is to read the judgment carefully for what it does and does not decide. The Court noted there was evidence of use and that it had been explained, but the evidence was not tested in a contested hearing because the respondent filed a submitting notice. So the case is best understood as a strong procedural authority about de novo appeals and the role of the non-use applicant, rather than as a final merits ruling after a full factual contest.

Finally, this case is especially relevant to regulated and online businesses. Financial services providers often use their marks across layered compliance and customer documents such as Product Disclosure Statements, Financial Services Guides, Target Market Determinations and client agreements. Those materials can become important trade mark evidence. If your business operates in a regulated sector, your compliance records may also be part of your brand protection strategy.

Did the Court finally decide the full non-use merits? Not in the way a fully contested hearing would. The Court reversed the delegate's decision in circumstances where the respondent did not prosecute the appeal and the Registrar did not appear.

Does this mean any trade mark owner can win if the other side files a submitting notice? No. The Court still considered whether there was any self-evident reason not to make the orders and noted there was evidence of use in the relevant period.

What should a business keep as evidence of use? Practical, dated materials such as agreements, disclosure documents, screenshots, platform pages, merchandise, business cards, email signatures and vendor documents can all be relevant if they show the registered mark used in Australia for the registered goods or services.

What if the business uses several versions of its brand? Review whether the exact registered mark is being used. Use of a variation may not always answer a non-use challenge to the registered mark.

The judgment was delivered on 15 October 2025 by Justice Markovic in the Federal Court of Australia. The hearing took place on 1 October 2025. The delegate's decision under appeal was made on 11 February 2025, and the non-use application had been filed on 29 August 2023.

The case should be read as a Federal Court decision allowing the appeal and dismissing the non-use application, with costs left for later agreement or written submissions. It should also be read with care because the outcome was shaped by the procedural posture of the appeal and not by a full contested merits determination.