ALDI Foods Pty Ltd v Gage Roads Brewing Co Ltd

ALDI Foods Pty Ltd opposed the registration of the trade mark "ALBY" by Gage Roads Brewing Co Ltd in Class 32 of the Trade Marks Act 1995. The opposition was heard by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the grounds of opposition, as pleaded by ALDI Foods Pty Ltd, had been established. Specifically, the delegate considered whether the trade mark "ALBY" was identical or deceptively similar to any earlier registered trade marks owned by ALDI Foods Pty Ltd, and whether these earlier marks were used in relation to the same or similar goods or closely related services. The delegate also had to determine the relevant date for establishing the grounds of opposition, which is the date of filing of the application for registration.

The delegate's reasoning, detailed in Annexure 1, concluded that ALDI Foods Pty Ltd had not established any of the grounds of opposition. The delegate applied the principle that the grounds of opposition must be established as at the date of filing of the application for registration. Evidence presented by ALDI Foods Pty Ltd regarding its use of the "ALDI" trade mark in relation to private label beer, and the Applicant's evidence concerning the development and marketing of the "ALBY" trade mark, were considered.

As no grounds of opposition were established, the delegate decided to register the trade mark "ALBY" in the name of Gage Roads Brewing Co Ltd, subject to the usual one-month period for appeal. Costs were awarded against the Opponent, ALDI Foods Pty Ltd.