Opposition by Active Skin Pty Ltd to an application under section 92 of the Trade Marks Act 1995 (Cth) by Yey Pty Ltd for removal of trade mark number 1127968 (class 3) – ACTIVE SKIN with flower device – in the...

This matter concerned an opposition by Active Skin Pty Ltd to an application by Yey Pty Ltd for the removal of trade mark number 1127968, registered in Class 3 for "cosmetics", under section 92 of the *Trade Marks Act 1995* (Cth). The application for removal was based on allegations of non-use. The hearing officer, Nicholas Barbey, considered the evidence filed by the Opponent, Active Skin Pty Ltd, as the Applicant, Yey Pty Ltd, did not participate further in the proceedings.

The primary legal issue before the hearing officer was whether the Opponent had demonstrated use of the trade mark in Australia in relation to the registered goods during the relevant period, as required by section 92(4)(b) of the Act. If use was not established for all registered goods, the hearing officer was required to consider whether to exercise the Registrar's discretion to allow the registration to remain unamended or to order partial removal. The standard of proof applied was the ordinary civil standard on the balance of probabilities.

The hearing officer found that the Opponent had provided sufficient evidence to rebut the allegation of non-use in respect of a subset of the registered goods, specifically bath salts and bath bombs. However, the evidence did not establish use for the broader category of "cosmetics". Consequently, the hearing officer determined that it was not reasonable to exercise the Registrar's discretion to allow the registration to remain unamended in its entirety. Accordingly, an order was made for the trade mark registration to be amended to specify only "bath salts" and "bath bombs" within Class 3. In relation to costs, as both parties had achieved partial success, each party was ordered to bear its own costs.