Federal Court of Australia

Skyn Pty Ltd v LifeStyles Healthcare Pte Ltd [2026] FCA 1060

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application, by minute of proposed orders, for non-standard discovery of the categories of documents described in amended Schedule R be dismissed.

2.    By 4.30pm (AWST) on 10 August 2026:

(a)    the parties confer by counsel in person (which may be by telephone or other electronic communication) for the purpose of agreeing upon proposed consent orders for non-standard discovery by category in terms consistent with the reasons for these orders; and

(b)    the appellant file:

(i)    a minute of proposed consent orders for non-standard discovery by category; or failing agreement

(ii)    any minute of proposed orders for non-standard discovery by category,

in terms consistent with the reasons for these orders.

3.    The appellant pay the costs of the respondent on the application, to be taxed in any event.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FEUTRILL J:

1    The appellant (Skyn Pty Ltd) has applied, by way of a minute of proposed orders, for orders that the respondent (LifeStyles Healthcare Pte Ltd) give non-standard discovery of four categories of document described in Schedule R to an outline of written submissions the appellant filed on 13 March 2026. LifeStyles Healthcare opposes the proposed orders.

2    There are two principal issues for determination. First, whether documents in the categories are directly relevant to the issues raised in the proceeding. Second, if so, whether discovery of the documents in the categories is necessary in that it will best promote the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of the dispute according to law and as quickly, inexpensively and efficiently as possible as described in s 37M of the Federal Court of Australia Act 1976 (Cth).

Materials before the Court on the application

3    Skyn filed written submissions on 13 March and 17 July 2026 and read affidavits of Ms Rousseau affirmed 13 March and 17 July 2026 in support of its application. LifeStyles Healthcare filed written submissions on 22 April and 10 July 2026 and read an affidavit of Ms Awerbuch affirmed 22 April 2026 in opposition to the application. While no formal objections were taken to any of the affidavits read on the application, there are many matters deposed in the affidavits that are, in substance, submissions, conclusions or comments and not statements of fact. To the extent that the affidavits do not depose facts, they have been treated as submission.

4    Additionally, LifeStyles Healthcare relied on letters from its legal representatives to Skyn’s legal representatives provided to the Court and dated 30 June 2026 and 10 July 2026. Neither of these letters was formally tendered and, therefore, while they are received as submissions in opposition to the application, to the extent that they contain statements of fact, the letters have also been disregarded as evidence of any fact except as to the fact of the communications.

5    The parties initially considered that Skyn’s application could be determined on the papers, however, the presiding judge was not satisfied that it was appropriate to do so under s 20A of the Federal Court Act. Thereafter, there were two oral hearings at which the parties made further submissions.

Nature of the proceeding

6    The proceeding is an appeal from a decision of the Registrar of Trade Marks under s 104 of the Trade Marks Act 1995 (Cth). As such, the matter is an intellectual property proceeding to which Div 34.3 of the Federal Court Rules 2011 (Cth) applies.

7    Skyn is the registered owner of 14 trade marks registered for services in class 35 and class 44 under the provisions of the Act. LifeStyles Healthcare made a non-use application under s 92(4) of the Act to the Registrar to have each of the ‘SKYN’ trade marks registered to Skyn partially removed from the Register by removing certain services from the classes the subject of the registered trade marks.

8    With respect to nine trade marks, LifeStyles Healthcare relied on s 92(4)(b) (non-use for three years). In the case of those trade marks, the Registrar either found that Skyn had not used them for the services sought to be removed or was not satisfied that Skyn had used them for those services. The Registrar also considered exercising, but refused to exercise, the discretionary power not to partially remove those trade marks from the Register conferred under s 101(3) of the Act. With respect to five trade marks, LifeStyles Healthcare relied on s 92(4)(a) (no intention to use in good faith). In the case of four of those trade marks, the Registrar was satisfied that Skyn had an intention to use them in good faith at the time of registration of the trade marks. In the case of the last trade mark, the Registrar was satisfied that Skyn had an intention to use it in good faith at the time of registration with respect to most, but not all, of the services. The Registrar directed that the registrations of Skyn’s trade marks be amended to qualify and (or) remove certain services from classes 35 and 44.

9    Skyn filed a notice of appeal from the Registrar’s decision in accordance with Form 92 and r 34.24(1) of the Rules. LifeStyles Healthcare filed a notice of cross-appeal in accordance with Form 93 and r 34.28(1) and a notice of contention in accordance with Form 77 and r 34.29. Additionally, LifeStyles Healthcare requested and the appellant answered a request for particulars of the grounds of appeal. (In these reasons, these documents are referred to collectively as the appeal issues court documents.)

10    The cross-appeal relates to the five trade marks that were the subject of the removal application under s 92(4)(a) of the Act. Separately, LifeStyles Healthcare made a non-use application to the Registrar with respect to those trade marks under s 92(4)(b) after the Registrar’s decision on the earlier non-use application and after the trade marks had been registered for a continuous period of three years and, therefore, such an application could be made under s 92(4)(b). The Registrar referred the second non-use application to this Court and, by an order made on 25 February 2026, that application will be heard and determined in this proceeding. The cross-appeal was subsequently dismissed, by consent, by an order pronounced on 1 July 2026.

11    It follows that the primary issue in question in the proceeding concerns the use of each of the 14 trade marks for services in class 35 or class 44 as described in the Register. Skyn bears the onus of proving use. However, if it fails to prove use, Skyn contends that the Court should exercise a discretionary power conferred under s 101(3) of the Act not to partially remove the trade marks. Skyn submits that the documents in the categories the subject of its application for non-standard discovery are relevant to factors that may be taken into account in the exercise of that discretion. As the appellant, Skyn also has the onus of proving the facts upon which it relies for a favourable exercise of that discretion.

Proposed order for non-standard discovery by categories of documents

12    Prior to a case management hearing held on 25 February 2026 Skyn provided LifeStyles Healthcare with a minute of proposed order pursuant to which LifeStyles Healthcare would be ordered to provide non-standard discovery of the categories of document described in Schedule R to the proposed orders. The proposed order also contemplates that the criteria referred to in r 20.14(1) and r 20.14(2) of the Rules would not apply to those categories of document.

13    Ultimately, Skyn applies for an order for non-standard discovery of the categories of document described in an amended version of Schedule R provided as part of its written submissions in support of the proposed orders as follows:

Schedule R – Categories

(marked up to show amendments compared to categories sought at the [case management hearing] to address the issues raised by the Respondent)

“Document” has the meaning ascribed to it in the Dictionary of the Evidence Act 1995 (Cth).

“Medical Services” means “Health counselling and consultancy services in relation to sexual health and wellbeing; provision of healthcare advice and information in relation to sexual health and wellbeing; telemedicine services in relation to sexual health and wellbeing; facilitating the provision of telemedicine services in relation to sexual health and wellbeing”.

“Respondent” means Lifestyles Healthcare Pte Ltd and “Ansell (the previous owner of the business now operated by the Lifestyles Group” referred to by Marta Toth in her affidavit dated 3 November 2025 at [3].

1.    Documents created or dated on or before 2012 evidencing or recording when the respondent Respondent first became aware of the appellant.

2.    Documents created or dated on or before 2012 evidencing or recording what searches the respondent Respondent conducted prior to prior to entering the Australian market launching the SKYN brand in Australia to ascertain whether anyone had:

(a)    a rights in SKYN as a trade mark; and/or

(b)    a right to exclude their use of trade marks containing the word SKYN.

3.    Documents created or dated after 1 September 2017 evidencing or recording Medical Services medical services and/or therapeutic services offered, provided, advertised and/or promoted by the respondent Lifestyles Healthcare Pte Ltd under or by reference to a trade mark that contains the word SKYN in Australia.

4.    Documents created or dated between 1 September 2017 and 27 April 2021 evidencing or recording the knowledge of Lifestyles Healthcare Pte Ltd of the appellant and its activities under SKYN trade mark(s).

Applicable principles

14    Part 20 of the Rules deals with discovery and inspection of documents. In reflection of the overarching purpose of the civil practice and procedure provisions, a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible: r 20.11 of the Rules. A party must not give discovery unless the Court has made an order for discovery: r 20.12(1). Moreover, the Court has a broad discretion to make or refuse to make an order for discovery and no party has any right to discovery from another party to the proceeding: see, e.g., Cameron v Rural Press Ltd (unreported, Federal Court of Australia, Burchett, Gummow and Hill JJ, 20 July 1990) at p 2, cited in Murex Diagnostics Australia Pty Ltd v Chiron Corp (1995) 55 FCR 194 at 199 (Burchett J).

15    Discovery can be very burdensome and costly without a correspondingly proportionate forensic necessity or benefit. Accordingly, the power of the Court to order discovery must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions described in s 37M of the Federal Court Act. The Court will balance the costs, time and possible oppression to the producing party against the importance and likely benefits to the applying party. If discovery orders are made, they can be tailored to suit the particular circumstances of the case. In addition, the party seeking discovery bears the onus of satisfying the Court that the documents sought are necessary: Babscay Pty Ltd v Pitcher Partners (a firm) [2019] FCA 480 at [94]-[95] (Middleton J), citing Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [14] (Katzmann J); United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116 at [3] (Tamberlin J); Taylor v Saloniklis [2013] FCA 679 at [7] (Besanko J); Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 at 436 (Lindgren J).

16    Similar observations are made and guidance given to the approach to discovery in Central Practice Note: National Court Framework and Case Management (CPN-1) at paragraphs 10.1 to 10.13. In the case of intellectual property proceedings, the Intellectual Property Practice Note (IP-1) at paragraph 7.1 records that ‘[i]n most cases there will not be any need for discovery except where it directly relates to proof of copying, knowledge or intention by or on the part of the party alleged to have infringed or other specific topics directly relevant to an issue in the proceeding’ and ‘the Court is unlikely to make an order requiring extensive discovery unless satisfied that it is necessary for the just disposition of the proceeding’.

17    A party applying for an order for discovery must state whether it seeks standard discovery or, otherwise, the scope of the discovery: r 20.13(2). The nature of orders for standard discovery or other discovery (non-standard discovery) is described in r 20.14 and r 20.15 as follows.

20.14    Standard discovery

(1)    If the Court orders a party to give standard discovery, the party must give discovery of documents:

(a)    that are directly relevant to the issues raised by the pleadings or in the affidavits; and

(b)    of which, after a reasonable search, the party is aware; and

(c)    that are, or have been, in the party’s control.

(2)    For paragraph (1)(a), the documents must meet at least one of the following criteria:

(a)    the documents are those on which the party intends to rely;

(b)    the documents adversely affect the party’s own case;

(c)    the documents support another party’s case;

(d)    the documents adversely affect another party’s case.

(3)    For paragraph (1)(b), in making a reasonable search, a party may take into account the following:

(a)    the nature and complexity of the proceeding;

(b)    the number of documents involved;

(c)    the ease and cost of retrieving a document;

(d)    the significance of any document likely to be found;

(e)    any other relevant matter.

(4)    In this rule, a reference to an affidavit is a reference to:

(a)    an affidavit accompanying an originating application; and

(b)    an affidavit in response to the affidavit accompanying the originating application.

Note:    Control is defined in the Dictionary.

20.15    Non-standard and more extensive discovery

(1)    A party seeking an order for discovery (other than standard discovery) must identify the following:

(a)    any criteria mentioned in rules 20.14(1) and (2) that should not apply;

(b)    any other criteria that should apply;

(c)    whether the party seeks the use of categories of documents in the list of documents;

(d)    whether discovery should be given in an electronic format;

(e)    whether discovery should be given in accordance with a discovery plan.

(2)    An application by a party under subrule (1) must be accompanied by the following:

(a)    if categories of documents are sought—a list of the proposed categories; and (b) if discovery is sought by an electronic format—the proposed format; and (c) if a discovery plan is sought to be used—a draft of the discovery plan.

(3)    An application by a party seeking more extensive discovery than is required under rule 20.14 must be accompanied by an affidavit stating why the order should be made.

(4)    For this Division:

category of documents includes documents, or a bundle of documents, of the same or a similar type of character.

Note:    A discovery plan is a plan that has regard to the issues in dispute and the likely number, nature and significance of the documents discoverable in relation to those issues—see the Court’s Practice Note CM6, ‘Electronic Technology in Litigation’.

18    Justice Besanko explained and summarised the concept of standard discovery and documents that are ‘directly relevant’ in Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2018] FCA 1058 at [5]-[11]. There, his Honour said:

5    …

The documents which are directly relevant are those identified in r 20.14(2). “[N]o other documents, other than those contained in r 20.14(2), can be said to be directly relevant to the issues raised by the pleadings or in the affidavit material”: United Voice v Accolade Wines Australia Limited [2013] FCA 285 (United Voice) at [21] per Lander J. Therefore, for documents to be “directly relevant”, the Rules require that they must meet one or more of the four criteria set out in r 20.14(2).

6    In my opinion, the requirements of r 20.14(2) are satisfied if the Court reaches the conclusion that the documents are directly relevant to one or other of the criterion. To take an example, although the Court may not be satisfied that a category of documents is within r 20.14(2)(c), an order will be made if the Court is satisfied that the category will be within either r 20.14(2)(c) or r 20.14(2)(d).

7    The criterion in r 20.14(2)(c) that “the documents support another party’s case” has been separately considered and interpreted as meaning the strengthening of a position, contributing to success, preventing failure or corroborating or substantiating a claim: Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63; (2012) 201 FCR 321 (Dennis) at [34]-[39] per Barker J.

8    The notion of direct relevance in rr 20.14(1)(a) and 20.14(2) is aimed at narrowing the scope of discovery: Dennis at [23] per Barker J. In essence, it requires that the documents in question be directly on point, in that they tend to prove or disprove the allegation in issue: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396; (2011) 212 IR 313 at [34] and [38] per Collier J. See also Redline Contracting Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2012] FCA 1157 (Redline) at [20], where Siopis J similarly held that “[t]he scope of discovery is dependent on what is in issue between the parties, which in turn, is dependent upon what is pleaded”.

9    The “Peruvian Guano train of inquiry test” is no longer applied in determining whether the documents in question should be discovered: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 48 LT 22; (1882) 11 QBD 55; United Voice at [17] per Lander J; Redline at [18] per Siopis J; Martino v Mac Services Group Ltd [2009] FCA 546 at [16] per Besanko J; Balaev v University of Adelaide [2016] FCA 278 at [23] per Besanko J.

10    The Central Practice Note: National Court Framework and Case Management (CPN-1) (along with past case law) also shows a commitment to limiting discovery to the circumstances of the case: Central Practice Note: National Court Framework and Case Management (CPN-1), 25 October 2016 at [10]; Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109; (2002) ATPR (Digest) 46-220; Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd [2005] FCA 242; Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [7] per McKerracher J. I also refer to the discussion as to the need to narrow the scope of discovery in the Australian Law Reform Commission’s Report, Managing Discovery: Discovery of Documents in Federal Courts (ALRC 115, 2011) at [5.73]-[5.114].

11    The proper scope of standard discovery is also a matter to be decided consistently with the overarching purpose and objectives set out in s 37M of the Federal Court of Australia Act 1976 (Cth): Caason Investments Pty Limited v Cao [2015] FCA 1435; (2015) 237 FCR 351 at [34] per Murphy J.

19    Applications for non-standard discovery by categories have become relatively common, but, as Colvin J observed in Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696 at [10]-[16], that process ‘tends to lead to disputation about the definition of categories rather than focus upon providing discovery’ and ‘[d]isputation about discovery is not only expensive for the parties, it is time consuming for the Court and consumes public resources better applied to the important public task of determining substantive disputes’.

16    Nevertheless, if discovery by category is to be pursued, it is to be expected that, in the usual case, the categories will be shown to be narrower than what would be required for standard discovery (and thereby duly confined to that which will facilitate the just resolution of the proceedings) or that there is some particular reason why disclosure of the particular category is appropriate. In other words, the provision in the Rules for an application for discovery with a 'proposed scope' is not intended to undermine the position that (a) discovery should only be ordered where it has been shown to facilitate the just resolution of the proceedings; (b) it is direct relevance that is the guiding principle; and (c) if discovery other than standard discovery is sought then the scope must be specified (and justified).

20    While it is to be expected that usually discovery by category will be narrower than standard discovery, as an order for discovery is discretionary, the Court has power, in an appropriate case, to order non-standard discovery that is wider than standard discovery. For example, discovery of documents indirectly relevant on the Peruvian Guano ‘train of enquiry’ test could be ordered in an appropriate case. However, an order for more expansive discovery than standard discovery, having regard to the exercise of the power in the way that best promotes the overarching purpose of the civil practice and procedure provisions, would be ‘highly unusual’ or ‘radical’: e.g., Redline Contracting Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2012] FCA 1157 at [18] (Siopis J).

21    Additionally, whatever other criteria may or may not apply to non-standard discovery, it would not be appropriate to order discovery of documents or categories of document that are not demonstrably relevant in any sense to the issues raised in the proceeding. Except for the specific regime for discovery against a prospective respondent in r 7.23 of the Rules, an order for discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling production of documents where there is already some evidence that a case exists: Trade Practices Commission v CC (NSW) Pty Ltd (No 4) at 438. Discovery should not be ordered to permit a party that makes a bare allegation to interrogate another party and ransack its documents ‘in the hope of making a case’. There must be sufficient evidence ‘to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery’. In the absence of such evidence, the proceeding (or allegation) is essentially speculative in nature. That is mere fishing: WA Pines Pty Ltd v Bannerman [1980] FCA 79; 41 FLR 175 at 181-182 (Brennan J, Bowen CJ agreeing) citing Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 at 460 (Smithers J).

22    Nonetheless, ‘[o]n the facts of particular cases, the application of the distinction between “fishing” and “non-fishing” may well be difficult’: Trade Practices Commission v CC (NSW) (No 4) at 438. Further, where there is sufficient evidence to ground a suspicion of a good case (or allegation) it may be appropriate to order discovery before requiring the party applying for discovery to give particulars of its case (or allegation): WA Pines v Bannerman at 181. Moreover, it is generally accepted that, where particulars of material facts are solely within the knowledge of the party from which discovery is requested, the party applying for discovery is permitted to obtain discovery from the party with knowledge before providing particulars of an otherwise insufficiently particularised allegation made in a pleading: e.g., Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 at 570 (Franklin J, Walsh J agreeing). However, the scope and extent of any discovery ordered in that circumstance remains within the discretion of the Court.

Inapplicability of r 20.14 criteria

23    As already mentioned, in its minute of proposed orders Skyn applies for an order to the effect that none of the criteria in r 20.14(1) and r 20.14(2) apply to the categories described in Schedule R. Consequently, an order in those terms contemplates ordering discovery of documents that are not directly relevant, that require more than a reasonable search and that are not or that have never been in the control of LifeStyles Healthcare.

24    Skyn has provided no basis or justification for making an order requiring LifeStyles Healthcare to make more than a reasonable search or to discover documents that are not or never been in its control. It is not appropriate to make an order to the effect that the criteria in r 20.14(1)(b) or r 20.14(1)(c) do not apply.

25    While Skyn contends that documents in the proposed categories are relevant, it has not provided any basis or justification for making an order that would require LifeStyles Healthcare to give discovery of documents in a category that is indirectly relevant, as opposed to directly relevant, to the issues raised in the pleadings or affidavits. Therefore, the effect of the proposed order that r 20.14(1)(a) and r 20.14(2) do not apply to the categories described in Schedule R is that documents in the proposed categories are presumed to be directly relevant to the issues raised in the pleadings or affidavits. Accordingly, to comply with the order for discovery it would not be necessary for LifeStyles Healthcare to separately consider whether a document in that category was also directly relevant. Further, consistently with the admonition of Colvin J in Whittaker (No 2), if documents in the proposed categories were manifestly directly relevant to the issues raised in the pleadings and affidavits, an order for non-standard discovery limited to those categories would be narrower than standard discovery which would necessarily include documents in those categories and other documents outside those categories that are also directly relevant.

26    It follows that establishing that any and all documents meeting the description of documents in the proposed categories are manifestly directly relevant to the issues raised in the pleadings or affidavits is an essential and central component of demonstrating that an order for non-standard discovery of documents in the proposed categories is necessary for the just resolution of the dispute in the proceeding. If so, it may be appropriate to make an order to the effect that the criteria in r 20.14(1)(a) and r 20.14(2) do not apply to the categories of document. If not, no such order should be made.

Proposed categories 1, 2 and 4

27    Relevantly, the parties have agreed the following facts for the purposes of determining the issues raised in the proceeding.

(1)    The trade marks using ‘SKYN’ were adopted by Skyn by at least January 2006. The font, letter spacing and colour of the relevant trade mark has remained unchanged and been used continuously since that time.

(2)    The 14 trade marks registered to Skyn and the subject of the appeal were registered between February 2013 and February 2021 with priority dates from March 2011 to May 2017.

(3)    On 1 September 2017 Ansell Limited divested its sexual wellness division to LifeStyles Healthcare including assigning Ansell’s global portfolio of trade mark registrations and applications associated with that division. As a consequence, it is evidently common ground that LifeStyles Healthcare is the successor in title to Ansell with respect to five trade marks registered to Ansell between May 2009 and February 2017 each of which use ‘SKYN’.

(4)    In December 2015 Ansell sent a letter of demand to Skyn about Skyn’s use of the name ‘SKYN’. As a consequence, it is evidently common ground that Ansell was aware of Skyn and its use of trade marks with ‘SKYN’ no later than December 2015.

(5)    LifeStyles Healthcare has been aware of Skyn since 2017.

(6)    LifeStyles Healthcare is the registered proprietor of four trade marks registered between February 2023 and July 2025 that use ‘SKYN’.

(7)    LifeStyles Healthcare is the applicant for two pending Australian trade marks that use ‘SKYN’ and ‘SKYN ARISE’. The first application is in class 5 with a priority date of 2 April 2019. The second is in class 35 and class 44 with a priority date of 8 February 2021. Examination of these applications has been deferred pending the outcome of the appeal.

28    Skyn submits that factors to be taken into account in the exercise of the discretion under s 101(3) of the Act include whether LifeStyles Healthcare (or its predecessor in title, Ansell) originally entered the Australian market or entered new segments of the Australian market and used its ‘SKYN’ trade mark without having taken steps to ascertain if Skyn had pre-existing common law or statutory rights in the use of ‘SKYN’ as a brand or trade mark in that market or market segment. Skyn submits that documents in proposed categories 1 and 2 are relevant to Ansell’s knowledge and proposed category 4 is relevant to LifeStyles Healthcare’s knowledge of Skyn’s pre-existing rights.

29    While it may be accepted that the documents described in proposed categories 1, 2 and 4 could be relevant to the identified factor, it does not follow that documents in the proposed categories are manifestly directly relevant to any issue raised in the pleadings or affidavits. Nor does it follow that, for the purposes of a discovery application, Skyn has sufficient evidence to ground a suspicion that it has a good case (or allegation) that the identified factor exists and has a bearing on the exercise of the discretion under s 101(3) of the Act.

30    The absence of sufficient evidence to ground a sustainable case (or allegation) relating to the state of knowledge of Ansell at the time it entered the Australian market and LifeStyles Healthcare at the time it decided to move into other segments of that market is all but conceded in the affidavit of Ms Rousseau affirmed on 17 July 2026. In that affidavit Ms Rousseau deposes, in effect by way of further submission, as follows:

Categories 1 and 2

12.    If documents are produced in response to Categories 1 and 2 that show Ansell commenced use of SKYN in Australia without doing due diligence, Skyn will argue that the discretion should be exercised in Skyn's favour because Ansell showed a reckless indifference to the state of the market.

13.    If no documents are discovered in response to Categories 1 and 2, Skyn will ask the Court to infer that no searches were undertaken and will make submissions as to reckless indifference.

14.    If the discovered documents in response to Categories 1 and 2 indicate Ansell entered the market aware of Skyn, its trade marks and/or its activities, Skyn will submit that the discretion should be exercised in Skyn's favour because Ansell entered the market knowing of preexisting rights and LifeStyles should not now be entitled to benefit from Ansell's cavalier approach to preexisting rights of Skyn Pty Ltd in SKYN trade marks.

Category 4

15.    If documents are produced in response to Category 4 that show LifeStyles commenced its shift or expansion into class 5, 35 and 44 goods and services with respect to SKYN in Australia without doing due diligence, Skyn will argue that the discretion should be exercised in Skyn's favour because LifeStyles showed a reckless indifference to the state of the market.

16.    If no documents are discovered in response to Category 4, Skyn will ask the Court to infer that no searches were undertaken and will make submissions as to reckless indifference.

17.    If the discovered documents in response to Category 4 indicate LifeStyles commenced its shift or expansion into class 5, 35 and 44 goods and services aware of Skyn, its trade marks and/or its activities, Skyn will submit that the discretion should be exercised in Skyn's favour because LifeStyles changed its approach with knowledge of preexisting rights and LifeStyles should not now be entitled to benefit from its cavalier approach to such preexisting rights of Skyn Pty Ltd in SKYN trade marks.

31    Further, it is not at all clear that Ansell’s knowledge or LifeStyles Healthcare’s knowledge of Skyn’s pre-existing rights is an issue that has been raised in the pleadings or affidavits as a case or allegation of which LifeStyles Healthcare has been given proper or adequate notice. Rule 34.24(2) of the Rules provides that a notice of appeal from a decision of the Registrar must state, amongst other things, the orders sought, the grounds relied on in support of each order sought and the particulars of each ground. A notice of appeal filed under r 34.24 is not a ‘pleading’ as defined in the Rules: Sch 1. Nonetheless, r 34.26 provides that a party is not entitled to tender any evidence or make any submissions in support of a ground of appeal not stated in the notice of appeal or a ground of appeal of which particulars have not been given. Therefore, the grounds of appeal and particulars of the grounds essentially serve the function of defining, at least, the issues in question in the proceeding upon which the appellant bears the onus of proof.

32    Relevantly, Skyn’s grounds of appeal are stated as follows.

…

4.    Further and/or in the alternative, the Delegate erred in refusing to exercise the discretion in section 101 of the Act to preserve the Trade Marks for the original specifications (at [116], [119], [122], [125], [128], [131], [134], [137]).

5.    In making the findings referred to in paragraph 4 above, the Delegate erred, inter alia, in finding that:

a.    the Appellant has not used the Trade Marks in relation to the unamended services in the period 2011 and 2015 (at [111]);

b.    the reputation in trade mark numbers 1413749, 1517918, 1517919 and 1738301 is confined to “services as amended” and does not extend to the “unamended services” (at [112], [114], [117], [120], [123], [126], [129], [132]);

c.    amendment of the original specification would not result in fragmentation of ownership and the amended specification would be broad enough to prevent consumer confusion (at [115], [118], [127], [133]);

d.    the amended specification would not practically impact on the interests of the Appellant (at [121], [124], [130], [136]);

e.    the amended specification would not result in consumer confusion (at [121], [124], [130], [136]);

f.    the evidence does not demonstrate that the Appellant had a reputation in trade mark number 1738413 (at [135]);

g.    the discretion should not be exercised despite finding that the services retained in the registrations are “similar” to the services removed from the Trade Marks and thereby failing to have proper regard to sections 101(3) and (4) of the Act (at [115], [118], [127], [133]).

    …

33    LifeStyles Healthcare requested Skyn, if it relies on s 101(3) of the Act, to provide particulars, ‘in respect of any trade mark in dispute, of the matters relied upon and pinpoint references to the evidence said to support those matters’. Skyn provided the following response to that request.

1.    In response to [LifeStyles Healthcare’s] request for particulars dated 30 April 2025, [Skyn]:

…

d.    reserves its rights in relation to and confirms its intention to rely on all instances of use in Annexure A (and others not referred to in Annexure A, but which are otherwise in evidence) whether before, during or after the Relevant Period in support of its opposition to the non-use applications and the exercise of the discretion not to remove any Trade Mark under s 101(3) of the Trade Marks Act;

e.    reserves its rights and confirms its intention to make submissions in relation to the exercise of the discretion in s 101(3) of the Trade Marks Act including by reference to the factors, as relevant, in Re Hermes Trade Mark [1982] RPC 425 and other authorities;

f.    reserves its right and confirms its intention to make submissions in relation to closely related goods and services including as is relevant under s 101(4) of the Trade Marks Act;

…

34    In Re Hermes Trade Mark [1982] RPC 425, Falconer J made reference to five factors by way of obiter dictum upon which his Honour would have relied to exercise a discretion not to remove the applicable trade mark if he had not found that there had been use of that mark. These factors may be summarised as follows:

(1)    The registered proprietor did not intend to abandon their mark and took bona fide steps to revive it which were independent from the application for removal of the mark from the register and were taken with ordinary commercial considerations in mind.

(2)    Although it had been dormant for a number of years, the registered proprietor continued to have a residual reputation in the mark.

(3)    There had been sales of goods the subject of the registered trade mark after the relevant period before the application for removal had ended.

(4)    The removal applicant entered the market and sold goods under the same word (Hermes) as the sign the subject of the registered proprietor’s mark without having taken any steps to ascertain from the public register of trade marks whether anyone had the right to exclude their use of that word as a trade mark for those goods.

(5)    The registered proprietor was not aware of the removal applicant’s sales of goods under the same word (Hermes) as used in the registered proprietor’s trade mark.

35    By its written submissions, Skyn evidently relies on E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934; 77 IPR 69 and PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd [2021] FCAFC 128; 285 FCR 598 as other authorities to which reference is made in para 1.e. of the further particulars. In E & J Gallo Winery at [202]-[204] Flick J accepted that the Re Hermes Trade Mark factors were relevant considerations in the exercise of the discretion under s 101(3) of the Act. Likewise, in PDP Capital at [153] the Full Court (Jagot, Nicholas and Burley JJ) considered these factors relevant to the exercise of the discretion.

36    It follows that, while Skyn has asserted an intention to rely on Re Hermes Trade Mark and other authorities, it provided no particulars of any facts and otherwise provided no pinpoint references to any affidavit material upon which it intends relying in support of any factor to which reference is made in Re Hermes Trade Mark or any other authority. Further, no other potentially relevant facts are raised in the notice of cross-appeal or notice of contention. Therefore, there are no issues of fact raised in the appeal issues court documents or affidavits in support of the bare assertion that Skyn intends relying on the Re Hermes Trade Mark factors. In these circumstances, none of the documents described in categories 1, 2 or 4 are directly relevant to the issues raised in the pleadings or affidavits.

37    In addition to the appeal issues court documents and affidavits filed in the proceeding, the parties have agreed that there are certain principal legal and factual issues for determination. In that document, notwithstanding the observation in the preceding paragraph, the parties have agreed that certain issues relating to potentially relevant factors in the exercise of the discretion under s 101(3) arise for determination in the proceeding. However, LifeStyles Healthcare has not agreed that all issues relating to the potentially relevant factors are live in the proceeding.

38    Insofar as proposed categories 1 and 2 are concerned, LifeStyles Healthcare does not accept that Ansell’s state of knowledge of Skyn’s common law or statutory rights in the use of its ‘SKYN’ brand or trade mark is an issue for determination in the proceeding. Therefore, the documents described in proposed categories 1 and 2 are not directly relevant to any issue raised in the proceedings and discovery of documents in those categories is not necessary for the just resolution of the dispute. Further, even if discovery of these categories were not mere fishing, for the reasons that follow, the proposed categories are described so broadly as to be oppressive and out of proportion to the likely resources used and costs incurred in giving discovery in comparison to the potential forensic value and importance of the issues to which the documents relate.

39    First, Schedule R defines ‘Respondent’ to mean LifeStyles Healthcare and Ansell. Proposed categories 1 and 2 refer to documents created or dated before 2012. It is an agreed fact that Ansell divested its business to LifeStyles Healthcare on 1 September 2017 and LifeStyles Healthcare was aware of Skyn since 2017. Therefore, to the extent proposed category 1 is directed to when LifeStyles Healthcare became aware of Skyn, it is not relevant to any disputed fact in the proceeding. Further, to the extent that proposed category 2 refers to searches conducted prior to LifeStyles Healthcare ‘launching the SKYN brand in Australia’ it is plainly inconsistent with the agreed facts and of no relevance to LifeStyles Healthcare.

40    Second, to the extent that proposed categories 1 and 2 are directed to documents ‘evidencing or recording’ the awareness of and searches conducted by Ansell, having regard to the agreed facts, it is not self-evident and cannot be inferred from the agreed facts that LifeStyles Healthcare would necessarily have any documents in its control answering the description of documents in proposed categories 1 and 2. As already mentioned, there is no basis for dispensing with the criterion in r 20.14(1)(c) to the effect that a party give discovery of documents that are or have been in that party’s control.

41    Third, notwithstanding the observations in the preceding two paragraphs, Ms Awerbuch deposes, on information and belief, in substance, that after LifeStyles Healthcare acquired the Ansell business some documents were ‘migrated’ from Ansell to LifeStyles Healthcare, but that was not performed in a systematic or complete manner. The historical emails of staff that transferred from Ansell to LifeStyles Healthcare were ‘migrated on a person-by-person’ basis. LifeStyles Healthcare has no formal arrangements with Ansell and Ansell has no obligations to provide LifeStyles Healthcare with access to documents that were not transferred from Ansell to LifeStyles Healthcare. However, to the extent that LifeStyles Healthcare may have received documents from Ansell after 2017, it does not follow that documents described in proposed categories 1 and 2 were transferred to and are in LifeStyles Healthcare’s control.

42    Fourth, to the extent that LifeStyles Healthcare may have received documents from Ansell after 2017, the proposed categories have no temporal restriction except that they were created or dated before 2012. It is an agreed fact that Skyn was not incorporated until 2004. Therefore, documents created or dated before 2004 could not be relevant on any view.

43    Fifth, no attempt has been made in the drafting of the description of the proposed categories to limit or confine the source of documents to particular officers, agents, employees or roles. Ms Awerbuch deposes facts to the effect that extensive searches of LifeStyles Healthcare’s records would be necessary to identify any potentially relevant Ansell employees whose records were transferred to LifeStyles Healthcare before then conducting any searches of that employee’s records. Ms Awerbuch also deposes facts to the effect that identifying relevant employees and, once identified, searching records is likely to take eight to 12 weeks involving many hours of LifeStyles Healthcare’s employees’ time and incurring legal costs of $40,000 to $50,000. Even without Ms Awerbuch’s evidence, it is self-evident that the width of the description of the documents in proposed categories 1 and 2 is likely to result in LifeStyles Healthcare allocating significant internal resources and incurring substantial legal costs to give the requested discovery.

44    Last, the forensic benefit or importance of any documents discovered in the proposed categories is doubtful. For the purposes of an interlocutory application, it may be accepted that entering the Australian market with reckless indifference to or with knowledge of pre-existing rights of Skyn in the ‘SKYN’ brand or trade mark may be relevant to the exercise of the discretion under s 101(3) of the Act. However, in circumstances in which it appears to be common ground that, at the time Ansell commenced using its ‘SKYN’ trade marks in Australia, there was no evident overlap between the goods Ansell provided under its ‘SKYN’ trade marks and the goods and services Skyn provided under its ‘SKYN’ brands or trade marks, the significance of any indifference of Ansell to, or knowledge of Ansell of, Skyn’s common law or statutory rights in the use of ‘SKYN’ is not obvious. Indifference or knowledge are also matters that, if present, pertain to the exercise of a broad discretion involving many other relevant factors. It is not apparent that either of these factors, if present, would be of such weight or importance as to overwhelmingly favour exercise of the discretion not to remove Skyn’s registrations.

45    Insofar as category 4 is concerned, LifeStyles Healthcare accepts that whether it was aware of Skyn and Skyn’s related trade marks (including the trade marks the subject of the proceeding) when LifeStyles Healthcare made its pending application for registration of ‘SKYN’ and ‘SKYN ARISE’ trade marks in classes 35 and 44 is an issue that may be considered in the proceeding. However, the description of the documents in proposed category 4 is far wider than that which is necessary to give discovery of documents directly relevant to that issue for a number of reasons.

(1)    It is an agreed fact that LifeStyles Healthcare has been aware of Skyn since 2017 and the relevant pending trade mark application has a priority date of 8 February 2021. Therefore, it is not in issue that LifeStyles Healthcare was aware of Skyn when it made that application.

(2)    The proposed category extends to documents ‘evidencing or recording the knowledge of [LifeStyles Healthcare of Skyn’s] activities under SKYN trade marks’. Whereas the fact in issue is LifeStyles Healthcare’s awareness (knowledge) of Skyn’s trade marks not its activities.

(3)    The proposed category extends to documents ‘created or dated’ in the period spanning 1 September 2017 to 27 April 2021. Whereas, the fact in issue is LifeStyles Healthcare’s awareness (knowledge) at a specific date (when the relevant pending application was made). Therefore, it is only documents that identify if and when LifeStyles Healthcare became aware of Skyn’s trade marks that are relevant to the fact in issue.

(4)    As observed with respect to proposed categories 1 and 2, to identify documents evidencing or recording a state of knowledge is likely to require extensive searches of many potential sources of that information. LifeStyles Healthcare, as a body corporate, can only have a state of mind through natural persons whose state of mind is attributed to it for a particular purpose or reason. No attempt has been made to narrow the potential source of information to any relevant officer, employee, agent or role who it may be expected would have created or retained documents containing such information.

(5)    For the reasons already given, the wider issue (indifference or knowledge from the time LifeStyles Healthcare expanded its use or intended use of ‘SKYN’) is not an issue raised in the pleadings or affidavits. Therefore, an order for discovery in the proposed category is also not necessary because it will capture documents that are not directly relevant to the issues raised in the pleadings or affidavits or by agreement or otherwise in the proceeding.

46    For the foregoing reasons, non-standard discovery of the documents in proposed categories 1, 2 and 4 should be refused.

Category 3

47    Skyn submits that another factor that may be taken into account in the exercise of the discretion under s 101(3) is whether removal (or partial removal) of the registration will result in deception or confusion of consumers or traders and (or) fragmentation of ownership of the trade mark. Skyn submits that factor involves consideration of the state of the Register and of the market at the time of judgment.

48    With respect to the state of the Register, Skyn submits that the non-use applications the subject of the appeal are partial. Irrespective of the outcome of the appeal, Skyn will maintain registration of the ‘SKYN’ trade marks for a range of class 44 services including ‘cosmetic treatment services’. That informs the state of the Register if Skyn fails to demonstrate use of the trade marks to the extent necessary to avoid partial removal of them from the Register.

49    With respect to the state of the market, Skyn submits that what use, if any, LifeStyles Healthcare has made of ‘SKYN’ in relation to ‘Medical Services’ as defined in Schedule R is a factor that the Court should take into account in the exercise of the discretion under s 101(3). If LifeStyles Healthcare has not used ‘SKYN’ for ‘Medical Services’ that tends towards exercise of the discretion in favour of Skyn. If LifeStyles Healthcare has used ‘SKYN’ for ‘Medical Services’ to such an extent that consumers or traders recognise ‘SKYN’ as a trade source of ‘Medical Services’ from LifeStyles Healthcare, that tends against exercise of the discretion in favour of Skyn. Skyn submits that the documents described in proposed category 3 are relevant to the state of the market.

50    Skyn submits that the state of the Register and the state of the market also inform the extent to which removal (here, partial removal) is likely to result in ‘fragmentation’ or ‘fine distinctions’ of ownership of trade marks. Such fragmentation or fine distinctions are undesirable and, where present, tend in favour of exercising the discretion under s 101(3) in favour of Skyn.

51    Given that Skyn bears the onus of proving its alternative case to the effect that the discretion under s 101(3) of the Act should be exercised in favour of non-removal, it would be orthodox for Skyn to assert or allege the facts upon which it relies in support of the ‘state of the Register’ or the ‘state of the market’ it alleges or contends is likely to result in deception or confusion of consumers and (or) fragmentation of the trade mark. The notice of appeal, grounds of appeal and further particulars to which reference has been made earlier in these reasons do not do so. Likewise, Skyn provided no pinpoint references to any affidavit identifying any facts upon which it relies in support of any contention that partial removal of its registered trade marks will result in deception, confusion or fragmentation. Again, LifeStyles Healthcare has no proper or adequate notice of the case (or allegations) Skyn intends to advance in the proceeding in support of any deception, confusion or fragmentation case favouring exercise of the discretion under s 101(3) not to remove Skyn’s trade marks.

52    Nonetheless, LifeStyles Healthcare accepts that whether removal of any of Skyn’s trade marks could be productive of deception or confusion of consumers/traders, including due to the state of the Register and (or) the market, and whether removal would result in fragmentation of ownership of the trade mark ‘SKYN’ are issues for determination in the proceeding. However, as to the precise nature of the factual issues concerning the state of the Australian market, the parties disagree about the nature of the issue for determination.

53    The parties agree that an issue for determination in the proceeding is whether LifeStyles Healthcare will suffer any detriment if the discretion under s 101(3) is exercised in favour of Skyn. The parties also agree that consideration of that issue may include the extent to which LifeStyles Healthcare has used ‘SKYN’ in relation to the goods it offers in the Australian market; namely: condoms, personal lubricants, sex toys, personal vibrating devices, intimate wipes, arousal gels, massage gels, delay (premature ejaculation) sprays and libido supplements (LifeStyles Goods) and whether any ‘SKYN’ mark is connected with the reputation of the LifeStyles Goods. However, the parties disagree about the extent to which consideration of that issue may include the extent to which LifeStyles Healthcare has used SKYN on or in relation to services it offers in the Australian market.

54    Evidently, the disagreement boils down to the extent to which any use by LifeStyles Healthcare of ‘SKYN’ on or in relation to ‘the provision of healthcare advice and information in relation to sexual health and wellbeing’ associated with ‘advertising, promotion and supply of, and education about the LifeStyles Goods’ can be characterised as the provision of services rather than the provision of goods. LifeStyles Healthcare contends the association should be characterised ‘as an adjunct to and in connection with’ advertising etc. In that case, it would involve the provision of services. Skyn contends the association should be characterised as ‘for the purposes of’ advertising etc. In that case, it should be characterised as the provision of goods.

55    However characterised, the evident factual issue the parties agree is in dispute and requires determination is the extent to which LifeStyles Healthcare has used ‘SKYN’ on or in relation to whatever it offers in the Australian market through the provision of healthcare advice and information in relation to sexual health and wellbeing associated with advertising, promotion and supply of, and education about the LifeStyles Goods and whether LifeStyles Healthcare has a reputation in any ‘SKYN’ mark in relation to the provision of that advice and information in that manner.

56    Insofar as a factual issue pertaining to deception, confusion or fragmentation may have been raised in the affidavits, by an affidavit of Ms Toth, which was exchanged as part of the pre-trial case management orders, LifeStyles Healthcare has evinced an intention to lead evidence of facts relating to the use of the ‘SKYN’ trade mark by Ansell and LifeStyles Healthcare. Skyn submits that this proposed evidence amounts to a concession on the part of LifeStyles Healthcare that evidence of its use (and Ansell’s use) of the ‘SKYN’ trade mark is relevant to the issues raised in the proceeding. That may be accepted, but Ms Toth’s proposed evidence is evidently directed to the uncontentious aspect of the agreed factual issue pertaining to LifeStyles Healthcare’s use of ‘SKYN’ in relation to the goods it offers in the Australian market. However, the manner in which the issue of LifeStyles Healthcare’s use of ‘SKYN’ in relation to services offered in the Australian market is said to be raised in Ms Toth’s affidavit is obscure.

57    Ms Awerbuch deposes in an affidavit affirmed on 22 April 2026 that she has been informed by Ms Rice, General Counsel of LifeStyles Healthcare, and believes that:

(a)    LifeStyles Healthcare has not specialised and does not specialise in the provision of services;

(b)    LifeStyles Healthcare has not provided or offered the following services under the SKYN brand to the public in Australia:

(i)    telemedicine services in relation to sexual health and wellbeing;

(ii)    facilitating the provision of telemedicine services in relation to sexual health and wellbeing; and

(iii)    health counselling and consultancy services in relation to sexual health and wellbeing;

(c)    LifeStyles Healthcare has, and continues to provide/offer healthcare advice and information in relation to sexual health and wellbeing but only as an adjunct to and in connection with advertising, promotion and supply of, and education about, LifeStyles Healthcare’s ‘SKYN’ branded products;

(d)    evidence of those kinds of activities is included in the affidavit of Ms Toth at paragraph [51] and in annexures MT-19 and MT-23 to that affidavit; and

(e)    other examples of these activities include the provision of safe sex information at events such as Mardi Gras and information sheets provided with LifeStyles Healthcare ‘SKYN’ branded products which are publicly available information.

58    Ms Rousseau’s affidavit affirmed 17 July 2026 also makes reference to annexures MT-19 and MT-23 to the affidavit of Ms Toth. These annexures are printouts of webpages referred to in that affidavit in paragraphs [51] and [52] that depose facts relating to the range of ‘SKYN’ branded products marketed and sold in Australia. Certain of the webpages refer to articles under the headings ‘We’re talking sexuality, orgasms, tutorials …’ and ‘Connection is everything’. These articles are not annexed to the affidavit.

59    The affidavits of Ms Rousseau and Ms Awerbuch which were affirmed and filed in support of and in opposition to Skyn’s application for non-standard discovery are not affidavits that describe or identify the issues raised in the proceeding for the purposes of Div 20.2 of the Rules. The affidavit of Ms Toth may be such a document, but her affidavit does not purport to give any direct evidence concerning the provision of healthcare advice and information in relation to sexual health and wellbeing. To the extent that there may be any evidence about that topic it is apparently by reference to articles that have not been produced with the affidavit. Skyn could have requested LifeStyles Healthcare to produce the articles, but it has evidently not done so: r 20.31 of the Rules. Therefore, the issues raised in the affidavit of Ms Toth do not take the issues in the proceeding any further than the parties’ agreed principal legal and factual issues for determination in the proceeding.

60    For the reasons already given, the agreed factual issue, leaving aside the matter of characterisation, is confined to the provision of healthcare advice and information in relation to sexual health and wellbeing. The provision by LifeStyles Healthcare of any of the other services falling within the description of ‘Medical Services’ in proposed Schedule R cannot be regarded as an issue raised in the pleadings or affidavits, by agreement, or in any other way in the proceeding. Moreover, LifeStyles Healthcare offered to formally agree (or admit or concede) that it has not provided any of those other services. Although there is no formal agreed fact to that effect, it cannot seriously be contended, consistently with the overarching purpose of the civil practice and procedure provisions, that the provision of those other services is a real issue in the proceeding.

61    It follows that proposed category 3 is also far wider than that which is necessary to identify any documents that could be relevant to the limited issue that the parties agree is to be determined in the proceeding. Ms Awerbuch also deposes facts to the effect that very significant resources and time would be required to give discovery of documents in that category. Having regard to the breadth of the description of the category both temporally and by nature, there is little doubt that it is likely to capture a large number of documents of marginal, if any, forensic significance as well as any documents that identify the nature of any healthcare advice and information in relation to sexual health and wellbeing LifeStyles Healthcare has actually provided. Therefore, the requested category is not in proportion to cost compared to the likely forensic utility of documents in the category as described.

62    For the foregoing reasons, non-standard discovery of the documents in proposed category 3 should also be refused.

Disposition

63    While non-standard discovery of the documents in proposed categories should be refused and none of the issues to which the proposed categories relate have been properly or adequately identified in the pleadings or affidavits filed in the proceeding, the parties have agreed that a more limited subset of those issues is to be determined in the proceeding. Therefore, documents that identify if and when LifeStyles Healthcare became aware of Skyn’s use of its ‘SKYN’ trade marks before LifeStyles Healthcare applied for its trade marks for ‘SKYN’ and ‘SKYN ARISE’ in class 35 and class 44 should meet one or more of the criteria of direct relevance set out in r 20.14(2) of the Rules. Likewise, documents that identify any healthcare advice and information in relation to sexual health and wellbeing LifeStyles Healthcare has actually provided to the public should meet one or more of those criteria. Accordingly, non-standard discovery targeted to appropriately narrow and focussed categories of document may be necessary for the just resolution of the dispute. Should it wish to do so, Skyn will have leave to apply for non-standard discovery of that nature. In the meantime, the parties will be directed to confer and promptly file any minute of consent orders for non-standard discovery.

64    As Skyn was unsuccessful on the application it should pay LifeStyles Healthcare’s costs of the application to be taxed in any event.

Associate:

Dated:    3 August 2026