Opposition by BLINC, INC. to an application under section 92 of the Act by SKNCOMPANY Pty Ltd for removal of trade mark number 831250 (3) – BLINK - 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) under section 92 of the Act for the removal of trade mark number 831250, BLINK, from the Register. The application for removal was based on grounds of non-use. The decision was made by Nicholas Smith, Hearing Officer.

The primary legal issue before the court was whether the Opponent had established use of the trade mark BLINK in Australia in relation to the "Removal Goods" during the relevant period, or whether there were obstacles to such use, pursuant to section 100 of the Act. Alternatively, if use could not be established, the court considered whether to exercise its discretion under section 101(3) of the Act to allow the trade mark to remain on the Register. Given the trade mark had been registered for more than five years, the court focused on section 92(4)(b) of the Act.

The court found that while the Opponent had established use of a related trade mark, BLINC, in Australia for cosmetic products, these products were primarily eye make-up and related items, and not the "Removal Goods" specified in the application, which included items such as lipsticks, lip balms, soaps, and shampoos. There was no evidence of the Opponent using the BLINK trade mark itself in Australia for any goods or services, nor were there any demonstrated obstacles to use. However, the court noted the significant reputation built by the Opponent in the BLINC mark for cosmetics and eye-care products, and that the Removal Goods were often produced by the same companies and sold alongside such products. Applying section 7(1) of the Act, which allows for use with additions or alterations that do not substantially affect the identity of the trade mark, and considering the close relationship between the Opponent's used goods and the Removal Goods, the court exercised its discretion under section 101(3) in favour of the Opponent.

Accordingly, the court decided that the Opponent had established its opposition to the removal application, and trade mark registration number 831250 would not be removed from the Register in respect of any of the goods for which it was registered. The Applicant was ordered to pay the Opponent's costs.