R Conroy Pty Ltd v L'Oreal

R Conroy Pty Ltd (the applicant) sought the removal of L'Oreal's trade mark registration number 569134 "discovery" from the Register of Trade Marks on the grounds of non-use. The dispute before the Trade Marks Hearings Officer, Jock McDonagh, concerned whether the applicant was a "person aggrieved" and whether L'Oreal had satisfied the requirements of section 92(4)(b) of the *Trade Marks Act 1995* (Cth) by demonstrating use of the trade mark during the relevant period.

The primary legal issue was whether the applicant qualified as a "person aggrieved" for the purposes of initiating removal proceedings under section 92(1) of the Act. Additionally, the Hearings Officer had to determine whether L'Oreal had discharged the onus, placed upon it by section 100(1)(c) of the Act, to rebut the allegation that its trade mark had not been used in good faith during the three years preceding the application for removal.

The Hearings Officer found that the applicant was a person aggrieved, as evidenced by its inability to register its own "lash discovery" trade mark, which indicated a commercial interest and potential detriment from L'Oreal's registration. Regarding the use of the trade mark, the Hearings Officer applied the principles established in *Imperial Group Ltd v Philip Morris & Co* and *Woolly Bull Enterprises Pty Ltd v Reynolds*, which require genuine commercial use and that a single bona fide use can be sufficient. However, the Hearings Officer noted the higher standard of proof required for a single act of use, as per *Nodoz Trade Mark*, and that mere assertions of use without documentary support carry little weight, citing *Great White Shark Enterprises Inc v Joose Apparel Pty Ltd*.

Ultimately, the Hearings Officer concluded that L'Oreal had failed to discharge the onus of proving use of the trade mark during the relevant period. Consequently, the opposition to the removal application was dismissed, and registration number 569134 "discovery" was ordered to be removed from the Register, unless a notice of appeal was served within one month. L'Oreal was also ordered to pay the applicant's costs.