Brevets Licences Commercialisations Laboratoires BLC Thalgo Cosmetic v Ogive (Australia) Pty Ltd

This matter concerned an application by Brevets Licences Commercialisations Laboratoires BLC Thalgo Cosmetic S.A. ("the applicant") to remove trade mark registration 433501 from the Register, held by Hollco International (Australia) Pty Limited ("Hollco"), on the grounds of non-use. The opposition to this removal application was lodged by Ogive (Australia) Pty. Limited ("the opponent"). The applicant sought removal in relation to cosmetics and toiletries, alleging that the trade mark OGIVE had not been used by the registered proprietor during the three-year period ending 14 February 1989.

The primary legal issues before the Delegate of the Registrar of Trade Marks were whether the applicant was a "person aggrieved" by the registration and, crucially, whether the trade mark OGIVE had been used in good faith by the registered proprietor in relation to cosmetics and toiletries during the relevant three-year period. The applicant bore the onus of proving non-use, which required establishing a prima facie case, after which the opponent would have the opportunity to present evidence of use.

The Delegate considered the applicant's evidence, including declarations from Mr. Paul Brand, which focused on the lack of awareness of the OGIVE trade mark within the cosmetics and toiletries industry. While acknowledging some weaknesses in the evidence, particularly regarding the scope and methodology of inquiries, the Delegate found that Mr. Brand's testimony, as a trader with ten years of experience, constituted sufficient evidence to establish a prima facie case of non-use in relation to cosmetics and toiletries. The Delegate then examined the opponent's evidence, which included declarations and exhibits detailing alleged use of the OGIVE mark in relation to bathroom amenities for the hospitality industry. This evidence included advertisements in an international journal and correspondence regarding supply to hotels. However, applying the principles from cases such as *Moorgate Tobacco v Phillip Morris* and *Settef S.p.A. v Riv-Oland Marble Co (Vic) Pty Ltd*, the Delegate concluded that the opponent's evidence did not demonstrate use in the course of trade within Australia during the relevant period, as the activities described appeared to be preliminary discussions and offers rather than actual trade or a readiness to fulfil orders.

Consequently, the Delegate directed that trade mark registration 433501 be removed from the Register in respect of cosmetics and toiletries, as the applicant had succeeded in establishing a case for removal and no sufficient reason was shown for leaving the registration in place for those goods. As the applicant had only succeeded in part, each party was ordered to bear its own costs.