Earlier in March 2026, the Federal Court delivered an important decision regarding the use of composite marks as evidence against non-use applications in the case of Trafalgar Group Pty Ltd v Boss Fire & Safety Pty Ltd [2026] FCA 202.  The decision, between two suppliers and manufacturers of passive fire protection products, addressed the proper approach to non-use challenges, composite trade marks, and the scope of cancellation powers under the Trade Marks Act 1995 (Cth).

Two related proceedings were heard concurrently:

• a non use appeal: Trafalgar’s challenge to a 2024 decision of a delegate of the Registrar ordering removal of the FYRE Device Mark for non use; and
• a cancellation action: Boss Fire’s attempt to cancel the trade mark on grounds including lack of distinctiveness, lack of intention to use, and bad faith.

The case

The dispute centred on Trafalgar Group Pty Ltd’s (Trafalgar) FYRE Device Mark, a composite mark containing the word ‘FYRE’ in a stylised orange font with a flame element and elongated ‘Y’.  The mark had a priority date of 7 August 2009 for a wide range of goods in Classes 1, 6, 17 and 19.

In 2019, Boss Fire & Safety Pty Ltd (Boss Fire) applied to remove the FYRE Device Mark for non-use, alleging Trafalgar had not used it between 23 January 2016 and 22 January 2019 in relation to any of the registered goods (Non-Use Period).  A delegate of the Registrar of Trade Marks later rejected Trafalgar’s opposition to the removal.

Trafalgar subsequently appealed the delegate’s decision to the Federal Court.  Boss Fire followed this action with an application seeking cancellation of the FYRE Device Mark under section 88 of the Trade Marks Act, arguing the FYRE Device Mark was not capable of distinguishing goods, was never intended to be used, and was filed in bad faith. Trafalgar disputed each allegation.

Trafalgar’s position

Trafalgar argued that even if the FYRE Device Mark was not used alone within the Non-Use Period, its repeated use within composite marks—including FYREFLEX, FYREPLUG, FYRECLAMP and FYRESET—constituted ‘use of the mark’ because the FYRE Device Mark appeared as a ‘mark within a mark’. It emphasised the consistent stylisation, colour, and placement of the FYRE element as a badge of origin across its family of products.

Trafalgar also provided extensive historic evidence showing that the FYRE branding for the relevant products originated decades earlier in the Wormald and Tyco groups as predecessors to Trafalgar, and claimed that the mark had long been recognised in the industry as denoting a system of fire protection products.

In the opposition of the cancellation action, Trafalgar submitted that the FYRE Device Mark was inherently adapted to distinguish, emphasising the stylised ‘FYRE’ and flame elements as distinctive, and arguing that the composite device went well beyond merely referencing ‘fire’. It denied any lack of intention to use and rejected allegations of bad faith.

Boss Fire’s allegations

Boss Fire contended that the Trafalgar product names were single compound marks (e.g. FYREFLEX) or as part of slogans such as ‘Fight Fire with FYRE’, such that no separate trade mark use of the FYRE Device Mark alone could be shown as evidence.  Boss Fire argued that the FYRE Device Mark was not used simpliciter during the Non-Use Period, and that the suffixes FLEX, PLUG, SET and CLAMP were essential to each composite mark, not mere additions.

In its cancellation action, Boss Fire submitted that ‘FYRE’ had the ordinary signification of fire and was an ‘obvious misspelling’ of the word fire, lacking distinctiveness for fire related products, and that the flame device reinforced this descriptive meaning.  Boss Fire further alleged Trafalgar never intended to use the FYRE Device Mark on its own, and that filing it was an attempt to monopolise the word ‘FYRE’.

Key takeaways

1. A ‘mark within a mark’ can constitute genuine use

The Court found that although Trafalgar did not use the FYRE Device Mark alone during the Non-Use Period, it did use the mark as a separate badge of origin within composite marks, performing a distinct trade mark function. The consistent stylised orange FYRE element served as the source of the product range within the product family while each suffix was held to be a secondary mark to identify each product. The use of the FYRE Device Mark in this way was held to be sufficient evidence demonstrative use of the FYRE Device Mark itself within the Non-Use Period.

2. Composite marks are not automatically single marks

Rejecting Boss Fire’s argument, the Court held that the suffixes –FLEX, –PLUG, –SET and –CLAMP, while important, did not eclipse the FYRE Device Mark’s separate source identifying role. The Court held that a notional consumer would see the FYRE Device Mark as fulfilling a separate role identifying the product range from the suffix.

3. Distinctiveness: FYRE is more than ‘fire’

On cancellation, the Court found the FYRE Device Mark to be inherently adapted to distinguish, noting the mark was not directly descriptive of passive fire protection goods and that the stylistic elements contributed to distinctiveness.  Importantly, despite other traders using ‘FYRE’, the combination of font, flame device and elongated tail made Trafalgar’s device distinctive as a whole.

4. Intention to use and bad faith

Because the Court found the FYRE Device Mark had been used as a trade mark, Trafalgar necessarily had intended to use it at the priority date. This meant that Boss Fire’s narrow bad faith argument which had been solely tied to Boss Fire’s allegations of non-use, failed once use was established.

Outcome

The Federal Court:

• allowed the non use appeal, meaning the FYRE Device Mark remains registered for passive fire protection goods;
• dismissed the cancellation action, rejecting all grounds including distinctiveness, intention and bad faith; and
• declined to impose any limitation preventing Trafalgar from enforcing the FYRE Device Mark.

Overall, the decision reinforces that composite marks can support continued registration where a core element functions as a distinct badge of origin, strengthening the position of brand portfolios built around families of marks. It also clarifies that distinctiveness must be assessed holistically, with stylisation and device elements playing a meaningful role in the distinctiveness of the mark. Additionally, the Court’s rejection of cancellation and limitation arguments underscores that non‑use, distinctiveness, intention and bad faith challenges must be rigorously substantiated, signalling a more robust evidentiary threshold for future opponents in trade mark disputes.

HWLE’s Intellectual Property team has extensive experience advising on brand protection mechanisms as well as trade mark registrations and disputes. If you have any questions or concerns regarding trade marks and branding, do not hesitate to contact us.

This article was written by Luke Dale, Partner, and Bellarose Watts, Solicitor.