Opposition by RV Skincare Brands LLC to registration of trade mark application number 2389961 (classes 3 and 5) – C Revive and device - in the name of Effiderma Research Group Pty Ltd

This decision concerns an opposition by RV Skincare Brands LLC ('Opponent') to the registration of trade mark application number 2389961, comprising the mark "C Revive and device", filed by Effiderma Research Group Pty Ltd ('Applicant') for goods in classes 3 and 5. The opposition was heard by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the Applicant's trade mark should be refused registration under sections 41, 44, and 60 of the *Trade Marks Act 1995* (Cth). The Opponent initially also pursued a ground under section 58, but this was abandoned. The relevant date for determining the rights of the parties was the filing date of the application.

The delegate considered the evidence filed by both parties. The Opponent argued that its own registered trade marks, including those featuring the word "RéVive", had established significant use and reputation in Australia for skincare products. The Opponent contended that the Applicant's mark was confusingly similar to its own marks and that the Applicant's mark was not inherently adapted to distinguish its goods, nor had it acquired distinctiveness through use. The Applicant, in its evidence, explained that the "C" in its mark referred to "celebration" or "cel" in its overarching brand "CelRevive", and the "Revive" element referred to the latter part of that brand name, with the cross device being an abstract representation of the skin's microbiome. The Applicant asserted that the "C" was not intended to refer to Vitamin C, which is not an ingredient in its product. The Applicant also argued that its use of the mark commenced in December 2023, and its sales and advertising expenditure were very low, distinguishing its goods from those of the Opponent, which were sold at a significantly higher price point.

Ultimately, the delegate found that the Opponent had not established any of the grounds of opposition pursued. The delegate concluded that the Applicant's mark was not likely to deceive or cause confusion under section 44, nor was it likely to be confused with the Opponent's marks under section 60. Furthermore, the delegate determined that the mark was capable of distinguishing the Applicant's goods under section 41. Consequently, the opposition was dismissed, and the trade mark application was allowed to proceed to registration, subject to a condition regarding the rendering of the device element in specific colours.