IN THE MATTER OF
THE                                                  
TRADEMARKS ACT, 1999 
 
IN THE MATTER OF Application
No. 3545732 in Class 03 for the Trademark ‘Vega
Lip Lush’ in the name of Vega industries Pvt.
ltd. having address at 4 B-43, SECTOR-80,
PHASE-2, NOIDA, U.P., INDIA 
and 
 
IN THE MATTER OF Opposition
No. 1060445 thereto by Cosmetic Warriors
Limited and Lush Limited. 
 
AFFIDAVIT OF EVIDENCE IN SUPPORT OF OPPOSITION 
 
I, Nicola Karen Dear, of legal age, having office at 29 High Street, Poole, Dorset, BH15
1AB do hereby solemnly affirm and state as follows: - 
 
1. I am a practicing solicitor of England and Wales and the Group IP Manager
of COSMETIC WARRIORS LIMITED, incorporated in England and Wales
under Company Registration No. 04165681 with registered office address at:
29 High Street, Poole, Dorset BH15 1AB, United Kingdom. Cosmetic
Warriors Limited, by itself, along with its global licensee, Lush Limited, is the
honest adopter and prior user of the LUSH mark internationally as well as in
India. COSMETIC WARRIORS LIMITED together with LUSH LIMITED
and its sub-licensees, are hereinafter collectively referred to as “my
Company".  
 
2. I joined my Company in September 2016 and have full and free access to
the books, records and other material information of my Company. I am
competent and duly authorized to make this affidavit on behalf of my
Company.  
 
3. I am acquainted with the facts relating to the present opposition
no. 1060445 filed against the pending application no. 3545732 in Class 3 for the
Trademark ‘Vega Lip Lush’ (hereinafter called the ‘impugned mark’). I have
perused a copy of the Notice of Opposition filed by my Company in the
present proceedings and confirm the veracity of the contents thereof and adopt
the statements contained thereto as my own. I have also perused a copy of
the Counter Statement filed by the Applicant and shall deal with the same
hereinafter. 
 
4. By this opposition, my Company is seeking to restrain the Applicant from
registering the Impugned Mark in relation to “Advertising, business
 management, business administration, office functions includes mainly
services rendered by persons or organizations principally with the object of
help in the management of the business affairs or commercial function of an
industrial or commercial enterprise”.  The instant opposition is founded on the
premise that my Company has prior statutory and common law rights in the
mark LUSH in relation to Class 35 services by virtue of its
registration dated January 17, 2011. Further, by virtue of extensive use going
back several years, including in India, my Company’s mark LUSH qualifies as
a well-known mark today and is entitled to protection as such across all
classes. My Company’s earlier mark LUSH is contained in its totality in
the Impugned Mark and forms its most prominent part. Since there is a high
degree of public recognition of the LUSH mark as distinctive of my
Company’s goods and services, registration of the Impugned Mark, without
any authority from my Company constitutes a misrepresentation, leading the
public to believe that there exists some connection between the Applicant and
my Company in the course of business, which is not the case.   
 
5. My Company is a leading cosmetics manufacturer specializing in making
“hand-made” cosmetic products from fresh fruits and vegetables, the finest
essential oils and safe synthetics without using any animal tested ingredients.  
 
6. By way of background, the mark LUSH was first adopted internationally as
a trade name by Lush Limited in 1995 pursuant to a competition organized by
my Company through its first newsletter and catalogue. Since then, the mark
LUSH has been continuously and extensively used in connection with my
Company’s worldwide business which has expanded rapidly from a single
store in Poole, Dorset (England) to over 900 shops in 49 countries across the
globe. Besides the exclusive stores, it also operates its business through
websites in many countries worldwide, including but not limited to, the U.K.,
Canada, Australia, Italy, Japan, Sweden, Hong Kong, Switzerland, Hungary,
Germany, Russia and the United States of America. A compilation of internet
extracts from my Company’s websites listing the geographical reach of my
Company’s business and products and tracing its history (including internet
extracts from Wayback Machine) is attached hereto as Annexure 1. 
 
7. My Company entered into a license agreement for use of the mark LUSH
in India in November 2003. The very first LUSH store opened its doors to the
public in India in 2004.  It is relevant to state here that my Company has
previously operated several exclusive stores for its LUSH products in India in
various cities such as Mumbai and Delhi as well as a dedicated website. Even
though all physical stores of in India closed in 2013, my Company has
continued to sell its products to customers in India through online websites
including but not limited to https://uk.lush.com; www.lush.com,
and https://mena.lush.com. The said websites also provide information
regarding my Company and its activities and products and are accessed
by internet users and customers across the world, including in India. In support
of the same, we also enclose in Annexure 2, details of UK website traffic from
India for the period January 2014 to June 2017 and June 2017 to December
 2019. Also included in this Annexure 2 are printouts from the UK Lush
website showing use of LUSH in connection with various products, alongside
analytics data between 2014 and July 2017 evidencing the visibility of these
products to consumers within this period (the personal names of users
accessing this data have been redacted). The “revisions” screen after each
website printout shows each time the product page was updated and includes
the year.  
 
8. In addition, my Company’s LUSH branded products are also available
through popular online retail stores (albeit without my Company’s
endorsement or involvement). Attached hereto and collectively marked
as Annexure 3 are extracts from the above-referenced websites, including
screen shots of historical pages from http://lushindia.com from
the Wayback Machine.   
 
9. Backed by a long-standing tradition of painstaking development, hard
work, substantial investment and uncompromising adherence to the highest
standards of quality, my Company today enjoys enviable international
reputation and goodwill with respect to its products under the LUSH mark. 
Attached hereto and marked as Annexure 4 are copies of certain articles
published in the print media evidencing the unsolicited media attention
received by my Company’s products under the well-known mark LUSH in
India and internationally.  
 
10. My Company has obtained trademark registrations for the LUSH marks in
several countries worldwide, including India. The oldest registration for the
mark LUSH in India dates back to the year 1998 in class 03. A list of countries
where the LUSH marks are registered along with copies of a
few registration certificates (including from India with corresponding
online extracts from the Indian TM Office’s website) are attached hereto and
collectively marked as Annexure 5. 
 
11. My Company’s products bearing the LUSH marks have been sold on an
extensive scale all over the world either by itself or through its licensees for
over 20 years. Attached as Annexure 6 is the annual report and financial
statements of my Company for the year 2018-2019. Data showing worldwide
sales figures as well as the volume of goods sold by my Company from 2005
to 2020 is attached as Annexure 7.  Also included in this Annexure is data
showing the volume of the Indian sales of my Company’s products under the
LUSH marks during the period 2005 to 2013. Additionally, included in
Annexure 7 is a listing of some LUSH products for sale on third party
platforms, such as Amazon.in and ubuy.co.in. Data detailing the website sales
of LUSH branded products to India from my Company’s new UK website
which went live in Spring 2014 is attached as Annexure 8. Also included in
this Annexure are samples of invoices of orders made on the UK website for
delivery in India and data showing product sales from Lush.co.uk to India from
July 2016 to early April 2021, amounting to a net value
of over £42,000 (approx. INR 4338188).  As can be seen, the “order ID”
column on the spreadsheet at Annexure 8 prefixed with “UK-LW” corresponds
with the “order” number under the “order details” at the top of the sample
invoices at Annexure 8.  
 
12. My Company has also built up a significant presence on social media over
the years. Keeping up with the latest technology and applications, my
Company has also developed applications for mobile phones and tablets which
allow users to access information about my Company’s products. Customers in
some jurisdictions can also review and purchase a range of products such as
bath bombs, soaps etc. The LUSH app on Google Play has over 100,000
downloads with over 900 reviews. My Company also offers content via
various social media websites, including Twitter (where the
handle @LushLtd has 190k followers), Facebook (over 400,000
followers and over 423,000 ‘likes’ for the main Lush UK page), and Instagram
(over 659k followers). My Company’s YouTube channel, available
at https://www.youtube.com/channel/UChewoP6Us_3Lm_4sRPhxe2A/about, 
was created in 2006 and has enjoyed almost 9 million video views by internet
users around the world. The LUSH North America YouTube page also
has 406k subscribers and has had over 71 million views. All the above figures
are as of June 1, 2021. All these pages and applications are accessed by
millions of internet users worldwide, including in India. Attached hereto and
marked as Annexure 9 are some extracts from my Company’s above
mentioned social media pages. Also included in the same Annexure 9 is a
compilation of a few social media mentions for the LUSH mark
internationally, including examples of influencers using LUSH products
around the world. In these days of extensive use of global communication
networks and social media, reputation of a mark travels across national
boundaries in a matter of seconds and users of the Internet worldwide,
including in India, are exposed to and aware of such reputation and
goodwill. The LUSH mark has also obtained the benefit of such spill-over
reputation and goodwill which is in turn further strengthened by the
interchange of millions of Indians who visit countries abroad, including the
UK.   
 
13. My Company also initiates legal actions against various infringers and
violators of the intellectual property and goodwill in the name LUSH by way
of cease and desist notices, oppositions etc. in respect of goods in its core class
of cosmetics and personal care products and also in respect of goods in classes
05 (medicinal products), 30 (food products), 32 (beverages), 22 (ropes, strings,
sacks), 18 (luggage, carry bags), 20 (furniture, mirrors), 25 (clothing,
headgear, footwear) and 35 (advertising, marketing and promotional
services). Enclosed as Annexure 10 a list of examples of such actions.
Included in this Annexure is a judgment of the UK High Court (Chancery
Division) in litigation involving my Company and Amazon. In the very first
paragraph of the said judgment (on page 2), the Hon’ble Court states that “The
Claimants, who I will call Lush, are the manufacturers and suppliers of
cosmetics under the Lush brand.  Lush is well known for its colourful soaps
and also for its bath bombs.” The said Annexure also includes
 a favourable order received in an opposition filed by my Company before the
USPTO against an entity called Luscious Ltd. The said order acknowledges
(on page 10) that my Company’s mark LUSH is very strong and widely
known.  
 
14. My Company’s repute and fame in the well-known mark LUSH
is further evidenced by the fact that it has won numerous awards and accolades
for the same. Attached and marked as Annexure 11 is a list of awards won by
my Company since 2006.  
 
15. My Company has also been publishing product brochures under the name
LUSH TIMES since 1995 internationally and from 2004 to 2013 in
India. Sample copies of LUSH TIMES, including from 1995 are attached
hereto and marked as Annexure 12. 
 
16. As evidenced by its numerous registrations, extensive use, publicity
and enforcement both internationally and in India going back several years, my
Company’s LUSH mark qualifies as a well-known and “earlier mark” as
envisaged under the Trade Marks Act, 1999 (hereinafter ‘the Act’) that
is distinctive and exclusively identified with my Company’s business and
products alone. 
 
PARAWISE REPLY 
 
17. Notwithstanding the afore going, my Company vehemently refutes and
denies all the contentions /submissions statements/averments made by
the Applicant in the Counter Statement except those that are specifically
admitted by me in this Affidavit or in the Notice of Opposition and while
denying the averments, I specifically deal with the same as follows: 
 
1. The contents of paragraphs 1 & 2 of the Counter Statement are
denied as legally misplaced. It is specifically denied that the present
opposition has been filed with any extraneous consideration and ulterior
motive just to harass the Applicant and cause inconvenience. 
 
2. The contents of paragraph 3 of the Counter Statement are denied for
want of knowledge, including the Applicant’s claims of establishment of her
business in 2019. It is interesting to note that the Applicant claims to be in
the business of the entire class heading of “Advertising, business
management, business administration, office functions includes mainly
services rendered by persons or organizations principally with the object of
help in the management of the business affairs or commercial function of an
industrial or commercial enterprise”.  In another corresponding
opposition filed by my Company against the same Applicant in
Class 44 (opposition no. 1055313 against application no. 4380756), the
Applicant claims to be in the completely unrelated business of “Medical
services; Veterinary services; Hygienic and beauty care for human beings
or animals included in class 44”. It is obvious from these claims that the
 Applicant is simply making vague, unsubstantiated and sweeping
submissions about her business that are most likely untrue. The Applicant is
put to strict proof of her claims regarding her business. 
 
3. The contents of paragraphs 4 and 5 of the Counter Statement are
denied for want of knowledge and the Applicant is put to strict proof
of her averments. It is denied that the Impugned Mark was adopted in 2019.
It is further denied that the Impugned Mark is distinctive and that the
Applicant has been using the same bonafidely, continuously, commercially,
openly, exclusively and to the exclusion of others. Specifically, the
Applicant’s claims of use and publicity of the Impugned Mark and any
associated reputation are denied. It is also specifically denied that
the Impugned Mark is associated and identified exclusively with
the Applicant or that it denotes the Applicant’s goods and business. 
 
4. The contents of paragraphs 6, 7 and 8 of the Counter
Statement are repetitive, baseless, misleading and legally misplaced. I
accordingly deny the contents of these paragraphs in its entirety. It
is specifically denied that the Applicant is an honest, original and
established player in the market. The Applicant’s unsubstantiated claims of
the exclusive association of the Impugned Mark with her is denied as are her
claims regarding reputation and goodwill of the Impugned Mark. It is also
denied that the Applicant has been using the Impugned Mark continuously
and uninterruptedly since adoption in respect of her business and has made
it popular and distinctive among the member of trade and business as well
as in general public. The Applicant is put to strict proof of her claims of the
Impugned Mark having acquired actual distinctiveness. The Applicant is
also put to strict proof of her claims of expenses on publicity and
advertisement of the Impugned Mark. 
 
5. The contents of paragraph 9 of the Counter Statement are denied for
want of knowledge and the Applicant is put to strict proof of her averments,
including those relating to expansion of her business. It is relevant to note
that apart from making vague and general claims, the Applicant has not
even explained the exact nature of her business or provided any specific
details about the nature and manner of use of the Impugned Mark. 
 
6. The contents of paragraph 10 of the Counter Statement
are repetitive in nature. While denying the contents of the same, I reiterate
and reaffirm the contents of the preceding paragraphs of this affidavit which
suitably deal with the claims of the Applicant.  
 
7. The contents of paragraph 11 of the Counter Statement are
denied as baseless and legally misplaced. It is reiterated that my
Company’s earlier well-known registered mark LUSH in Class 35 is
incorporated in its entirety in the Impugned Mark and is a prominent feature
of the same. In view of the same, the Applicant’s submissions regarding
dissimilarity of the marks are evidently misplaced. Any use of the Impugned
 Mark would therefore amount to infringement of my Company’s prior
registered rights in the LUSH mark. 
 
8. The contents of paragraph 12 of the Counter Statement are prima
facie false and the Applicant is put to strict proof of the same. The Applicant
is clearly attempting to mislead this Hon’ble Tribunal when it claims to
have carried out pre-filing searches, including through the records of the
TM Office for the Impugned Mark at the time of adoption. If such searches
had been diligently done, the Applicant would have come across my
Company’s prior registered LUSH mark in Class 35 which was filed back in
2011. It is also categorically denied that the present opposition has
been filed with any malafide intent.  
 
9. The contents of paragraphs 13 & 14 of the Counter Statement
are repetitive in nature and in any way are denied for want of knowledge
and the Applicant is put to strict proof of her averments. It is denied that
the Applicant has incurred considerable expenses, labour and skill in
popularizing of the Impugned Mark and the said mark identifies and
distinguishes the goods/ business of the Applicant from those of the goods
of others and is exclusively associated and connected with the goods,
business and operations of the Applicant and therefore the said mark is
entitled for registration under the provisions of the Act in the name of
the Applicant. It is denied that the present notice of opposition is baseless. It
is also specifically denied that the Applicant is the bonafide proprietor of the
Impugned Mark or that she has any common law rights in the same.   
 
10. The contents of paragraphs 15 & 16 of the Counter Statement
are misleading in law and fact, baseless, unsubstantiated and hence denied
in its entirety. It is specifically denied that my Company’s user claim
is bereft of merit and lacks substance in totality and that the
present notice of opposition has been filed only to harass the Applicant. All
of the Applicant’s baseless and unsubstantiated claims regarding my
Company’s grounds and submissions in its notice of opposition are denied.
Other than making bald and frivolous denials, the Applicant has failed to put
forward even a single, cogent argument in favour of her application. 
 
11. The contents of paragraphs 17 to 19 of the Counter Statement are
denied as legally misplaced, repetitive, and devoid of any merit. The
Applicant’s claims regarding exclusive association, the quality and sale
of her goods and business are denied and the Applicant is put to strict proof
of the same. The Applicant’s baseless claims and denials regarding my
Company’s notice of opposition are denied as unsubstantiated and having
no merit in law. For the sake of brevity, I crave leave to reiterate and
reaffirm the contents of my Company’s notice of opposition in its entirety as
well as the preceding paragraphs of the present affidavit where the
Applicant’s baseless averments have already been suitable dealt with. 
 
REPLY TO PARA-WISE DENIAL OF MY COMPANY’S NOTICE OF
OPPOSITION: 
 
12. The Applicant has simply denied the contents of my Company’s
notice of opposition verbatim, without providing any legal or logical basis
for the same. For the sake of brevity, I reiterate that my Company’s notice of
opposition was filed on the basis of valid and cogent grounds under
the Act. I accordingly reiterate and reaffirm the contents of the notice of
opposition once again. It is further submitted that my Company
has filed extensive evidence in support of this opposition, including those
pertaining to the well-known nature of my Company’s mark LUSH, along
with the present affidavit. For the sake of brevity, I crave leave to refer to
and rely upon the same.  
 
It is also categorically denied that the Applicant’s mark is distinctive,
capable of distinguishing the Applicant’s goods/ services and that the
same does not cause confusion and deception amongst the general
public. As stated hereinabove, the Impugned Mark is deceptively similar
to my Company’s prior, registered and well-known mark LUSH as it
incorporates LUSH in its entirety. Any averments by the Applicant to the
contrary are therefore rejected. It is also refuted that Applicant is the
honest and bonafide adopter of her mark since 2019. The Applicant is put
to strict proof of all her averments.  
 
13. The contents of paragraphs 18 & 19 of the Counter Statement, are
denied as unwarranted. It is vehemently denied that my Company’s prayers
in its notice of opposition are illegal, unlawful, devoid of any merit and
misconceived. To the contrary, it is the Applicant’s prayers that are devoid of
merit and hence denied based on my Company’s submissions hereinabove. It
is reiterated that the Applicant has miserably failed to make out a case
for herself and has adopted the Impugned Mark with the ill intention of
deriving undue benefit from the reputation and goodwill enjoyed by the well-
known mark LUSH of my Company. It is accordingly submitted that the
Applicant is not entitled to any of the reliefs claimed in the concluding
paragraph of the Counter Statement. 
 
18. In view of the aforesaid, it is respectfully prayed that: 
a. Application No. 4380755 in Class 35 be refused registration; 
b. The instant opposition be allowed; 
c. Costs of these proceedings be granted in our favor; and 
d. Any other or further relief be granted to meet the ends of justice. 
 
Dated this the ___  day of June, 2021. 
At : 
 
                                                                                                  DEPONENT 
 
 
 Verification 
 
I, Nicola Karen Dear, do hereby verify that the statements made in Paragraphs 1-3 are
true to my knowledge, Paragraphs 5-15 are derived from and based upon records of my
Company and believed to be true, Paragraphs 4, 16 and 17 (including Paragraphs 17.1 to
17.13) contain submissions to this Hon’ble Tribunal based on legal advice received,
Paragraph 18 is a prayer to this Hon’ble Tribunal and the Annexures are what they
purport to be. 
 
 
 
DEPONENT 
 
Dated this the ___ day of June, 2021.  
[Notarial Seal & Certificate]