Opposition by Aqi Care Pty Ltd to application under section 92 of the Trade Marks Act 1995 (Cth) by Pure Beginnings (Pty) Ltd to remove trade mark number 1105548 (class 3) – PURE BEGINNINGS with device - in the...

This matter concerned an opposition by Aqi Care Pty Ltd (the Removal Opponent) to an application by Pure Beginnings (Pty) Ltd (the Removal Applicant) to remove trade mark number 1105548, registered in Class 3, from the register under section 92 of the *Trade Marks Act 1995* (Cth). The Removal Applicant alleged that the trade mark had not been used in Australia during the relevant three-year period preceding the application. The hearing officer was Katrina Brown.

The legal issues before the hearing officer were whether the Removal Opponent had used the trade mark "PURE BEGINNINGS with device" in Australia in good faith in relation to the registered goods during the relevant period, and if not, whether the Registrar's discretion should be exercised to allow the mark to remain on the register for some or all of the goods. The onus was on the Removal Opponent to rebut the allegation of non-use on the balance of probabilities.

The hearing officer found that the Removal Opponent had successfully rebutted the allegation of non-use in relation to "baby lotion" by providing evidence of use, including an Amway catalogue, a product pamphlet, a photograph of products at a trade show with non-English banners, a licence for the "Australian Made" logo, and a presentation dated 2018 featuring "Pure Beginnings Moisturising Baby Lotion". However, the evidence did not establish use for any other goods within the specified class. The hearing officer noted that neither party made submissions regarding the exercise of the Registrar's discretion, and there was no persuasive evidence to support exercising it in favour of the Removal Opponent for the goods other than baby lotion.

Consequently, the hearing officer directed that the specification of goods for the trade mark be amended to "Class 3: Baby lotion" one month from the date of the decision, unless a notice of appeal was filed. In relation to costs, as both parties had achieved a degree of success, each was ordered to bear their own costs.