Eurark LLC v Planet Health Pty Limited

Eurark LLC (the applicant) sought to remove the trade mark FOREVER YOUNG from the Register of Trade Marks, which was registered by Planet Health Pty Limited (the opponent). The dispute concerned the opponent's alleged non-use of the trade mark in Australia. The matter was heard by Jock McDonagh, as a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the trade mark FOREVER YOUNG should be removed from the Register on the grounds of non-use, as provided for under section 92 of the relevant legislation. Specifically, the delegate had to consider whether the applicant had established that the trade mark had not been used in Australia for a continuous period of three years ending one month before the filing of the application for removal, or whether the applicant for registration had no intention in good faith to use the trade mark in Australia at the time of filing the application for registration.

The delegate considered evidence regarding the opponent's business model, which involved selling products, including cosmetics bearing the FOREVER YOUNG trade mark, through a referral marketing scheme in the United States of America via mail and the internet. The applicant presented evidence asserting that the opponent's goods were therapeutic goods that were not registered under the Therapeutic Goods Act 1989 and therefore could not be legally advertised or distributed in Australia. The delegate's reasoning would have involved an analysis of the evidence presented by both parties in light of the statutory requirements for trade mark use and the grounds for removal under section 92.

The provided text does not contain the delegate's final decision or orders.