Federici Brands LLC v Shenzhen Falaisheng Consulting Management Co Ltd

Federici Brands LLC opposed an application by Shenzhen Falaisheng Consulting Management Co Ltd to remove its Australian trade mark registration number 1510096, for the mark COLOR WOW in Class 3, under section 92(4)(b) of the *Trade Marks Act 1995* (Cth). The application for removal was based on non-use of the trade mark. The relevant period for assessing use was the three years preceding 1 April 2020.

The primary legal issue before the Hearing Officer was whether the trade mark COLOR WOW had been genuinely used in Australia in relation to the goods for which it was registered during the relevant period. If non-use was established, the Hearing Officer also had to consider whether to exercise discretion to remove the trade mark from the register.

The Hearing Officer found that Federici Brands LLC had provided sufficient evidence of use of the COLOR WOW trade mark in Australia during the relevant period. This evidence included sales through Australian retailers such as Hairhouse Warehouse and Haircare Australia, as well as online sales via various platforms. Furthermore, evidence of a strong social media presence and international awards was presented. In the absence of contrary submissions from the applicant for removal, the Hearing Officer was satisfied that the trade mark had been used in relation to the registered goods and that it was appropriate to exercise discretion not to remove the trade mark for any unused goods.

Consequently, the Hearing Officer ordered that the trade mark COLOR WOW remain registered for all goods. Costs were awarded against the Removal Applicant.