Opposition by BLINC, INC. to an application under section 92 of the Act by SKNCOMPANY Pty Ltd for removal of trade mark number 1039383 (3, 8) – BLINC - in the name of BLINC, INC.

This matter concerned an opposition by BLINC, INC. (the Opponent) to an application by SKNCOMPANY Pty Ltd (the Applicant) for the removal of trade mark number 1039383, registered in the name of BLINC, INC., from the register under section 92 of the Act. The trade mark, BLINC, was registered in Classes 3 and 8, covering cosmetics and hand implements and tools for cosmetic purposes. The hearing officer presiding over the matter was Nicholas Smith.

The primary legal issue before the hearing officer was whether the Opponent had used the trade mark in Australia during the relevant period, as required by section 100 of the Act, or whether circumstances constituted an obstacle to such use. Given that the trade mark had been registered for more than five years, the hearing officer considered the application for removal solely under section 92(4)(b) of the Act. The Opponent bore the onus of establishing use, or alternatively, the Registrar was required to consider exercising discretion under section 101(3) if use could not be proven.

The hearing officer found that the Opponent had provided sufficient evidence, including dated invoices, to establish use of the trade mark in Australia for a range of cosmetic products and implements during the relevant period. However, the evidence did not demonstrate use for shampoos, conditioners, and body wash (referred to as the 'Remaining Goods'), nor did it establish any obstacles to their use. Consequently, the hearing officer considered whether to exercise the Registrar's discretion under section 101(3) to allow the trade mark to remain on the register for these Remaining Goods. Applying section 101(4), and noting the significant reputation built by the Opponent in the trade mark for cosmetics and skincare, the hearing officer was satisfied that it was reasonable to exercise this discretion in favour of the Opponent.

Accordingly, the hearing officer decided that the Opponent had successfully opposed the application for removal, and trade mark registration number 1039383 would not be removed from the register in relation to any of the goods for which it was registered. The Applicant was also ordered to pay the Opponent's costs in accordance with Schedule 8 of the Trade Marks Regulations 1995.