Rhythm & Blue Inc Limited v The Temple Skincare Pty Ltd

In a decision by Hearing Officer Louise Tuohy, Rhythm & Blue Inc Limited (the Removal Opponent) sought to prevent the removal of its registered trade mark, registration number 844671, from the Register of Trade Marks. The application for removal was brought by The Temple Skincare Pty Ltd (the Applicant) under section 92 of the *Trade Marks Act 1995* (Cth), specifically alleging non-use of the trade mark for the registered services.

The primary legal issue before the Hearing Officer was whether the Removal Opponent had demonstrated sufficient use of the trade mark as registered to resist removal under section 92(4)(b) of the Act. The Hearing Officer was required to determine if the Removal Opponent had established grounds for the continued registration of the trade mark, or if the Applicant had successfully proven non-use, thereby entitling the trade mark to be removed from the Register.

The Hearing Officer found that the trade mark had been on the Register for 20 years and that the Removal Opponent had failed to provide evidence of its use as registered. In the absence of such evidence, the Hearing Officer was not persuaded that removing the trade mark would cause consumer confusion or adversely affect the Removal Opponent's interests. Consequently, the Hearing Officer concluded that the ground for removal under section 92(4)(b) had been established and directed that trade mark registration 844671 be removed from the Register. The Hearing Officer also awarded costs against the Removal Opponent.