Body Business Pty Ltd v Opti-Nutra Ltd

Body Business Pty Ltd opposed an application by Opti-Nutra Ltd to remove its registered trade mark, BURN LAB (number 1386626), from the register under section 92 of the *Trade Marks Act 1995* (Cth). The trade mark was registered in classes 5 and 41. The matter came before Tracey Berger in the Federal Court of Australia.

The primary legal issue before the Court was whether Opti-Nutra Ltd had established grounds for the removal of the BURN LAB trade mark. Specifically, the Court had to determine if the trade mark had been used by Body Business Pty Ltd in a manner that was likely to deceive or cause confusion, or if it had not been genuinely used in Australia.

In her reasoning, Tracey Berger considered the evidence presented by both parties regarding the use of the BURN LAB trade mark. The Court applied the principles of trade mark law concerning genuine use and the potential for deception or confusion. After reviewing the evidence, the Court found that Opti-Nutra Ltd had not discharged its onus of proof to establish the grounds for removal under section 92 of the *Trade Marks Act 1995* (Cth).

Consequently, the Court ordered that the opposition be dismissed and that Opti-Nutra Ltd pay Body Business Pty Ltd's costs.