Undated Photos and Bare Assertions: ROUSSAS Trade Mark Removed for Lack of Real Evidence

Undated Photos and Bare Assertions: ROUSSAS Trade Mark Removed for Lack of Real Evidence

A trade mark non-use proceeding is not won by simply asserting that your product was on shelves. It is won by proving it — with evidence that is dated, contextualised, and credibly connected to the registered mark and the registered owner. Del Re Nominees Pty Ltd found out what happens when evidence falls short of that standard, losing its ROUSSAS cheese mark to the Greek dairy company whose name it carries.

Background: A Greek Cheese Mark, an Australian Holder

ROUSSAS is a Greek dairy company — Roussas Dairy S.A. — known for producing feta, halloumi, and other traditional Greek cheeses. In Australia, however, the word mark ROUSSAS (TM 774391) has been held since 1998 by Del Re Nominees Pty Ltd, an Australian company. This kind of arrangement — where an Australian importer or distributor holds the local trade mark for a foreign product they handle — is not uncommon, though it creates obvious tensions if the overseas producer eventually wants control of its own name in this market.

Roussas Dairy filed to remove the Australian ROUSSAS mark, targeting the period from 4 August 2021 to 4 August 2024. Del Re opposed the removal.

What Del Re Filed — and Why It Wasn't Enough

Del Re's evidence package consisted of three elements: undated photographs of cheese labels bearing the ROUSSAS name; a "label invoice" from QLM Label Makers Pty Ltd showing label orders between 2013 and 2024; and a declaration making various assertions about sales.

Delegate Justin Williams identified critical problems with each piece.

The label photographs were entirely undated. There was no information about when the photos were taken, in what context, or whether the goods depicted had actually been sold in Australia during the relevant period (August 2021 to August 2024). A photo of a product label, standing alone, demonstrates that a label was printed — not that the product was sold, distributed, or available to consumers at any particular time.

The QLM invoice was similarly opaque. It showed rows of figures across multiple years, but without item descriptions connecting those figures to ROUSSAS labels, and without any clear indication of quantities corresponding to the relevant period specifically. Numbers without context tell the delegate very little.

The sales assertions in the declaration were bare: no invoices, no customer records, no order confirmations, no evidence of advertising. Del Re claimed its products were not advertised online — but offered no explanation of how they were advertised or distributed, and no evidence of any commercial activity whatsoever beyond paper labels that might have been printed at any time.

Roussas Dairy's own searches confirmed: no online presence, no social media, no listings, no evidence of any consumer-facing activity under the ROUSSAS mark in Australia during the relevant period.

The Decision

Delegate Williams found that the three pieces of evidence neither individually nor collectively demonstrated use of the ROUSSAS word mark in Australia during the relevant period. The registrar's discretion was not exercised: Del Re had no demonstrated residual reputation in the mark in Australia, made no commitment to future use beyond bare assertions, and the evidence did not support any inference of ongoing commercial viability. The mark was removed. Costs were awarded against Del Re.

Practical Takeaways

• Undated product photos are essentially worthless in non-use proceedings. Every piece of evidence needs to be anchored in time. Photos, screenshots, and label samples must be dated — either by the document itself, a statutory declaration, or corroborating records — and connected to the relevant period under examination.

• Sales records must be specific and contextualised. Invoices and order records should show what goods were sold, under what mark, when, and in which territory. A spreadsheet of numbers without descriptions is not a sales record — it's a mystery document.

• If you don't advertise online, explain how you do advertise. Saying your products aren't advertised online might be true, but it immediately invites the question: how are they advertised? Without an answer — and evidence of whatever alternative method is used — the delegate is left with nothing.

• Australian importers holding overseas brand marks face specific risks. If your registration covers a mark that the overseas producer may eventually wish to reclaim, robust and contemporaneous use records are your only protection. The passage of time does not substitute for evidence.

Citation: Del Re Nominees Pty Ltd v Roussas Dairy S.A. [2026] ATMO 141 (28 July 2026)

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