Opposition by Cosmetic Warriors Limited to application by Australian Therapeutic Supplies Pty Ltd for partial removal of trade mark number 724252 (3,5) - LUSH - in the name of Cosmetic Warriors Limited

This matter concerned an opposition by Cosmetic Warriors Limited to an application by Australian Therapeutic Supplies Pty Ltd for the partial removal of trade mark number 724252, known as "LUSH", from the Register. The application for removal sought to remove the trade mark in respect of all goods in class 5, on the grounds of non-use. The decision was made by Louise Tuohy, as delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether Cosmetic Warriors Limited had used the trade mark "LUSH" in good faith in relation to the goods in class 5 during the three-year period ending on 13 August 2019. The onus was on Cosmetic Warriors Limited to rebut the allegation of non-use. The delegate was required to determine if the evidence presented by Cosmetic Warriors Limited demonstrated "real, as opposed to token, use in a commercial sense" of the trade mark for the specified goods within the relevant period.

The delegate considered evidence of tax invoices for the sale of various products, including ENZYMION, DREAM CREAM, NEW CHARITY (CHARITY POT), SLEEPY BODY, and COSMETIC LAD. However, these invoices were issued by Lush Australasia Retail Pty Ltd, not by Cosmetic Warriors Limited directly. While Note 1 to section 100(3) of the *Trade Marks Act 1995* (Cth) provides that authorised use by another person is taken to be use by the registered owner, the delegate was not satisfied that the evidence established direct use by Cosmetic Warriors Limited or that Lush Australasia Retail Pty Ltd was an authorised user in relation to the goods in class 5. Consequently, the delegate found that Cosmetic Warriors Limited had not discharged the onus of proving use of the trade mark in good faith for the goods in class 5 during the relevant period.

The delegate ordered that the trade mark be removed from the Register in respect of all goods in class 5.