Peter Cracknell v Revlon Consumer Products Corporation

This matter concerned an application by Peter Cracknell (the applicant) to remove the trade mark "Customeyes & Lips" from the Register of Trade Marks, based on allegations of non-use. Revlon Consumer Products Corporation (the opponent) sought to defend the registration by demonstrating use of the trade mark within the relevant three-year period. The hearing was conducted by Iain Thompson, a Hearing Officer for Trade Marks.

The central legal issue before the Hearing Officer was whether the opponent had established, to his satisfaction, that there had been at least a single use of the impugned trade mark "Customeyes & Lips" in good faith within the three years preceding the application for removal. This required the opponent to rebut the applicant's claim of non-use, as per section 100 of the relevant Act. The applicant had also argued that the evidence of use was insufficient, either because it did not demonstrate use of the trade mark in its precise registered form or because it was of low probative value regarding the dates of use.

The Hearing Officer considered the evidence presented by the opponent, which included statements about the vision for the "Customeyes & Lips" trade mark, the nature of the product (customisable cosmetic palettes), and documentary evidence such as sales receipts and in-store posters. The opponent asserted that the product was trialled in early 2010, with sales occurring in January and March of that year, and that promotional posters were displayed from April to May 2010, followed by a product launch in May 2010. Further sales receipts from June to November 2010 were also exhibited. The Hearing Officer found that the opponent's evidence, including the sales receipts and posters, was sufficient to establish use of the trade mark during the relevant period. He also determined that the goods in question, "bath and body related products," were sufficiently similar to "cosmetics" such that use of the trade mark in relation to them would not be deceptive or confusing, and therefore, no limitation of the registration scope was warranted.

Ultimately, the Hearing Officer was not satisfied that the grounds on which the application for removal was made had been established by the applicant. Accordingly, the application for removal was dismissed. The opponent, having been successful, was awarded costs against the applicant on the official scale.