Oppositions by Symphony Holdings Limited to applications under section 92 of the Trade Marks Act 1995 (Cth) by Skins IP Limited for removal of twenty three trade marks registered in the name Symphony Holdings Limited.

This matter concerned oppositions by Skins IP Limited (the Opponent) to applications filed under section 92 of the *Trade Marks Act 1995* (Cth) by Symphony Holdings Limited (the Applicant) for the removal of twenty-three trade marks registered in the name of Symphony Holdings Limited. The proceedings were heard by Nicholas Barbey, Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issues before the Hearing Officer were whether the grounds for removal under section 92(4)(b) of the Act were established in respect of each of the twenty-three trade marks, and if so, whether the discretion to retain some or all of the registrations should be exercised. The Opponent sought complete removal of the trade marks, relying on evidence of use of the SKINS brand in Australia by the Opponent and its predecessor in title, Skins International Trading AG.

The Hearing Officer applied the ordinary civil standard of proof on the balance of probabilities. Evidence was led by the Opponent through declarations of Benjamin Fitzmaurice, detailing the history of the SKINS brand, its sale of compression garments and sportswear in Australia since 1998, both directly via a website and through Australian retailers, and the acquisition of the registrations by the Opponent following the bankruptcy of the prior registrant. The Hearing Officer found that the Opponent had rebutted the allegation of non-use for the 5860 Mark. However, for nineteen other marks, the Opponent failed to rebut the allegation of non-use. In relation to two marks, the 6064 and 1034 Marks, the Hearing Officer was not satisfied that their goods and services should remain unamended. For the 1235 Mark, the Hearing Officer declined to exercise discretion to preserve the registration, finding no similarity between the goods in Class 9 and the Opponent's core business, and no evidence of residual reputation or post-relevant period sales.

Consequently, the Hearing Officer ordered that the 5860 Mark be retained, the 7680, 7681, 7682, 8063, 8064, 8065, 0635, 8468, 8469, 8470, 8471, 8472, 8473, 7622, 7020, 7021, 4587, 1043, 7511 and 1235 Marks be removed from the Register, and the 6064 and 1034 Marks be amended in accordance with specified amendments. Costs were awarded on a mixed basis, reflecting the partial success of each party in relation to different trade marks.