Re: Opposition by Austin John Watson ATF the Watson Family Trust to an application under section 92 of the Trade Marks Act 1995 (Cth) by Cosmetic Warriors Ltd to remove trade mark number 607740 (class 25) Lush

This matter concerned an opposition by Austin John Watson, trading as the Watson Family Trust, to an application by Cosmetic Warriors Ltd to remove trade mark number 607740 (class 25), registered under the name "Lush". The application for removal was brought under section 92 of the *Trade Marks Act 1995* (Cth). The delegate of the Registrar heard the matter in Canberra.

The legal issues before the delegate were whether the trade mark had been genuinely used in Australia in relation to the goods for which it was registered during the three years preceding the removal application, and if not, whether the Registrar should exercise discretion under section 101 of the Act to allow the trade mark to remain on the Register.

The delegate considered evidence filed by both parties, including declarations from Mr. Watson and a registered trade mark attorney. Mr. Watson claimed to have continuously used the trade mark on clothing sold through various retail outlets and licensed its use to his company, HD Brands. He provided invoices, bills of lading, and photographs of garments bearing the "Lush" label, but admitted his point-of-sale system was unsophisticated and lacked specific documentation linking sales to particular garments. The delegate found that the evidence did not demonstrate good faith use of the trade mark in Australia during the relevant period. Consequently, the delegate determined that the trade mark should be removed from the Register.