Preliminary steps, subjective intentions, or an online presence, including social media pages, are not enough to maintain a trade mark registration. In Stephanie Meysztowicz v Unbottled [2026] ATMO 1, the Australian Trade Marks Office removed a trade mark from the Register after finding that the owner's preparatory marketing efforts fell short of showing use of the mark.

This case serves as a clear reminder that maintaining a trade mark registration in the face of a non-use action requires more than preliminary steps or an online presence.

Background

Unbottled, which appears to be a French company, applied to remove Stephanie Meysztowicz’s (Meysztowicz) trade mark registration for BEAUTY UNBOTTLED in class 3 covering beauty products, shampoos, conditioners, cleansers, soaps, serums and various moisturisers.

The application sought complete removal under section 92(4)(b) of the Trade Marks Act 1995 (Cth) (the Act) on the basis that the mark had not been used during the relevant three-year period.

Ms Meysztowicz, the founder of Bare Bars, had started a business offering plastic-free beauty product alternatives, but claimed to have paused preparatory steps between June 2023 and 2024 due to unforeseen personal circumstances. Ms Meysztowicz recommenced operations for what she described as an imminent launch into the Australian market in 2025.

The removal application

Unbottled filed its own trade mark in April 2023 for Unbottled (fancy) covering goods in class 3 but was prevented from obtaining registration due to the existing BEAUTY UNBOTTLED trade mark.

Ms Meysztowicz invested significant time and money preparing for her business launch, claiming to have spent close to $10,000 and taken various preparatory steps to demonstrate intention to use the mark. During the relevant period, Ms Meysztowicz provided evidence of:

• Maintaining TikTok and Pinterest accounts displaying the trade mark;
• Purchasing domains and maintaining a Shopify website;
• Engaging a graphic designer and marketing firm; and
• Working with a manufacturing partner between 2019 and 2020 to develop products for a planned 2025 launch.

What counts as genuine trade mark use

Despite the evidence provided, the Delegate found the documentary evidence of preliminary steps to manufacture or test products was insufficient (described as “meagre in the extreme”). The evidence consisted of a redacted email heading, a payment with no information about the recipient entity or the nature of services provided, an introductory SMS exchange and two invoices from an unknown individual with no details of services provided.

Under section 92(4)(b) of the Act, a trade mark can be removed if it has remained registered for three years without use. The burden falls on the trade mark owner to prove they have used the mark.

The Delegate emphasised that use may be established where a trade mark appears in advertisements, but only where there is an existing intention to offer goods bearing the mark or actual trade in those goods. Where there is no actual trade or offer to trade — only preliminary discussions about whether the mark would be used — there is no use sufficient to constitute ownership.

Planning is not use

The Delegate drew a critical distinction between merely investigating and planning to use a trade mark versus objectively committing to use it. While Ms Meysztowicz may have had a bona fide subjective intention to use the mark, evidence of her actual steps went no further than preliminary discussions with a potential manufacturer about products that might be released on an unspecified date.

Merely creating a website and social media pages featuring a brand does not amount to use of a trade mark for particular goods and services. The Delegate emphasised that the goods and services must actually exist.

Ms Meysztowicz did not formally submit that obstacles prevented use of the mark during the relevant period. She referred to “unforeseen personal circumstances” that paused business development but provided no details or evidence, preventing the Delegate from assessing them.

The Delegate also noted that delays caused by these proceedings could not constitute an obstacle, as the removal application was filed after the relevant period.

Discretion: why the Delegate declined to save the registration

Even when non-use is established, the Registrar has discretion under section 101 of the Act not to remove a trade mark. However, the policy of the Act is to facilitate the removal of unused trade marks, with the public interest in the integrity of the Register generally demanding removal.

The Delegate found no consumer confusion risk given the absence of any actual use and weighed Ms Meysztowicz’s interests against those of Unbottled, a company already selling products in Australia that was prevented from registering its own trade mark.

The Delegate declined to exercise discretion in Ms Meysztowicz’s favour. The BEAUTY UNBOTTLED registration was ordered to be removed from the Register, with costs awarded against Ms Meysztowicz.

Key takeaways

• Be realistic about timing before launch. Three years can pass quickly when building a business. If genuine obstacles arise, document them thoroughly and seek legal advice on whether they should be included in your evidence.
• Marketing alone will not save your registration. Social media accounts, websites and early-stage product development are important, but on their own may not be enough to establish trade mark use.
• Evidence matters. Vague references to manufacturers, product development and “imminent” launches are unlikely to carry weight without supporting documentation.

What this means for you

Whether you are defending your own registration or seeking to register a trade mark, this decision highlights the importance of active trade mark management.

For established businesses with extensive portfolios, regular use audits can identify vulnerable registrations before third parties do. For emerging businesses, understanding the differences between brand building and genuine trade mark use can prevent costly mistakes.

Contact our trade marks team to audit your trade mark portfolio and ensure your registrations are protected.