Re: Opposition by Live Fashion Group Pty Ltd atf Live Fashion Unit Trust to an application under section 92 of the Trade Marks Act 1995 (Cth) by Live Roupas Esportivas Ltda. for removal of trade mark number 681429

This matter concerned an application by Live Roupas Esportivas Ltda. for the removal of trade mark number 681429 from the Register under section 92 of the *Trade Marks Act 1995* (Cth). The opposition to this removal was brought by Live Fashion Group Pty Ltd atf Live Fashion Unit Trust. The decision was made by Hearing Officer Nicholas Smith.

The primary legal issue before the Hearing Officer was whether the Opponent, Live Fashion Group Pty Ltd, had established use of the trade mark in Australia during the relevant period, as required by section 100 of the Act. If such use was established, the application for removal would fail. The Hearing Officer also considered the effect of the Applicant providing no evidence in the proceedings.

The Hearing Officer reasoned that to successfully oppose the removal application, the Opponent needed to demonstrate use of the trade mark, either through actual use or circumstances that presented an obstacle to use, during the relevant period. The Opponent provided evidence, including marketing materials showing social media use, photographs of retail premises displaying the trade mark, a newspaper article confirming the business was acquired as a going concern, and a tax invoice for leased retail space. Although the Applicant raised technical criticisms of some of this evidence, the Hearing Officer found that, viewed as a whole, the evidence clearly showed the Opponent operated a business selling clothing and fashion goods under the trade mark in Australia during the relevant period. Consequently, the Opponent satisfied its onus under section 100(3)(a) of the Act.

The Hearing Officer decided that the Opponent had established its opposition to the removal of the trade mark, and therefore, trade mark number 681429 was to remain on the Register. The Hearing Officer also directed that costs be awarded against the Applicant in favour of the Opponent.