Altina Australia Pty Ltd v Tina Drinks Pty Ltd

This matter concerned three consolidated opposition proceedings before Bianca Irgang, Hearing Officer, in the Australian Trade Marks Office. Altina Australia Pty Ltd (the Applicant) sought to register three trade marks, while Tina Drinks Pty Ltd (the Opponent) opposed these applications. The Opponent's opposition was primarily based on section 44 of the *Trade Marks Act 1995* (Cth), which deals with identical or deceptively similar trade marks for similar goods or services.

The legal issues before the Hearing Officer were whether the Applicant's trade mark applications should be rejected under section 44 of the Act. To succeed on this ground, the Opponent was required to demonstrate that it owned registered or pending trade marks that were substantially identical or deceptively similar to the Applicant's marks, that these marks covered similar or closely related goods or services, and that the Opponent's trade marks had an earlier priority date. The Hearing Officer also had to consider the general decision-making power under section 55 of the Act, which requires the Registrar to decide whether to refuse or register a trade mark having regard to the grounds of opposition.

The Hearing Officer found that the Opponent had not established any grounds for opposition. While the Opponent relied on three registered trade marks, the evidence indicated that only one of these registrations had an earlier priority date than one of the Applicant's trade marks and covered the same goods. Crucially, the Hearing Officer determined that the Opponent's trade marks were not substantially identical or deceptively similar to the Applicant's trade marks in respect of the relevant goods. Consequently, the Hearing Officer decided that the Applicant's trade mark applications could proceed to registration. The Applicant was awarded costs, with full costs for one opposition and 20% of the scale costs for the remaining two, given the commonality of evidence.