Australasian Conference Association Limited v Target Brands Inc
[2023] ATMO 154
•10 October 2023
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Australasian Conference Association Limited to registration of trade mark application number 2127474 (classes 3, 5, 6, 8, 9, 10, 11, 16, 21, 26, 29, 30, 32 & 35) – UP & UP - in the name of Target Brands, Inc
Delegate:
Tracey Berger
Representation:
Opponent: Justine Beaumont, Senior Counsel, instructed by Natalie Harre of AJ Park
Applicant: Gabriella Rubagotti of Counsel, instructed by Rebecca Currey of Bird & Bird
Decision:
2023 ATMO 154
Trade Marks Act 1995 (Cth) – opposition under section 52 – ss 42(b), 44 & 60 considered – s 60 established for some goods – opportunity to amend – application amended – trade mark to proceed to registration
Background
1. This decision concerns an opposition under s 52 of the Trade Marks Act 1995 (Cth)[1] brought by Australasian Conference Association Limited (‘Opponent’) to registration of the trade mark below in the name of Target Brands, Inc (‘Applicant’) covering a broad range of goods in classes 3, 5, 6, 8, 9, 10, 11, 16, 21, 26, 29, 30, 32 and retail services in class 35 as detailed in Annexure A (‘Goods and Services’):
Registration Number: 2127474 (‘Application’)
Trade Mark: UP & UP (‘Trade Mark’)
Filing Date: 12 October 2020 (‘Relevant Date’)
[1] Unless otherwise indicated, any references to sections or regulations in this decision are references to sections or regulations of the Trade Marks Act 1995 (Cth) (‘Act’) or the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.
2. Following advertisement of acceptance for possible registration of the Application, the Opponent filed a Notice of Intention to Oppose on 26 August 2021 then a Statement of Grounds and Particulars on 24 September 2021 (‘SGP’). The Applicant lodged a Notice of Intention to Defend on 13 January 2022.
3. The parties proceeded to file their evidence in accordance with the Regulations. The Opponent’s evidence in support (‘EIS’) was lodged on 14 April 2022, followed by the Applicant’s evidence in answer (‘EIA’) on 14 July 2022 and concluding with the Opponent’s evidence in reply (‘EIR’) on 15 September 2022.
4. After the evidence stage ended, both parties requested an oral hearing. As a delegate of the Registrar of Trade Marks, I heard this matter via videoconference on 21 July 2023. Justine Beaumont of counsel presented submissions on behalf of the Opponent and Gabriella Rubagotti appeared for the Applicant. Both parties filed written submissions in advance of the hearing. I make this decision based on the aforementioned materials and oral submissions of the parties.
Grounds of opposition, onus and standard of proof
5. The SGP nominated grounds of opposition under ss 42(b), 44 and 60.
6. To be successful, the Opponent bears the onus of establishing at least one of the grounds[2] on the balance of probabilities.[3] The date at which the rights of the parties are to be determined is at the Relevant Date.
[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).
[3] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
Evidence
7. The following evidence was filed:
EIS
·Confidential declaration made on 14 April 2022 by Sharon Louise Green, Marketing Manager (Beverages) for Australian Health and Nutrition Association Limited, with Exhibits SG-01 to SG-27 (‘Green Declaration’).
·Declaration made on 14 April 2022 by Benita Sen, Litigation Assistant at AJ Park, with Exhibits BS-01 to BS-02 (‘Sen Declaration’).
EIA
·Declaration made on 14 July 2022 by Rebecca Currey, solicitor at Bird & Bird, with Exhibits RC-1 to RC-4 (‘Currey Declaration’).
EIR
·Declaration made on 15 September 2022 by Breanna Paige McElroy-Thompson, solicitor at AJ Park, with Exhibits BM-1 to BM-8.
EIS
8. Ms Green is the Marketing Manager for Australian Health and Nutrition Association Limited which trades as Sanitarium Health Food Company (‘Sanitarium’). The Opponent is the registered owner of Sanitarium’s trade marks which are licensed to Sanitarium for use. Any reference to the Opponent includes a reference to Sanitarium and related companies.
9. According to the Green Declaration, the Opponent is one of the oldest and largest health food companies in Australia, offering and producing a wide range of health and nutrition-focused foods including cereals, dairy-free milks, condiment spreads and liquid breakfasts.
10. The Opponent opposed registration of the Trade Mark because it regards the Trade Mark as confusingly similar to the Opponent’s mark UP&GO (‘Opponent’s Mark’) which is used and registered for goods that are the same, similar or closely related to the Goods and Services. As a result, the Opponent believes that use of the Trade Mark by the Applicant for the Goods and Services is likely to deceive or cause confusion to consumers.
11. The Opponent’s Mark is registered in various word or logo forms throughout the world including the following Australian registrations (‘Opponent’s Registrations’):
Number
Trade Mark
(collectively ‘Opponent’s Marks’)
Priority Date
Class[4]
722872
UP&GO
27 Nov 1996
32
939110
UP&GO
19 Dec 2002
29 & 30
1050702
UP&GO ENERGIZE
13 Apr 2005
29, 30 & 32
1650928
UP&GO
7 Oct 2014
31
1653547
21 Oct 2014
29, 30 & 32
2019536
28 June 2019
29, 30 & 32
[4] The specifications are detailed in Annexure B to this decision.
12. In the 1990s, the Opponent developed a liquid breakfast beverage offered under the Opponent’s Marks which has been the market leader since its launch in Australia in 1998. The range now consists of 7 flavours and includes protein, no added sugar and dairy free versions. A number of other varieties have been available in the past such as UP&GO VIVE, UP&GO OATS2GO, UP&GO Blends and UP&GO Yoghurt.
13. The Opponent’s Marks are used on all of its liquid breakfast products (‘Opponent’s Goods’), associated advertising, promotional and marketing material and promotional merchandise such as apparel, footwear, bags, coolers, umbrellas, rugby balls, drink bottles and pens. In addition, the Opponent’s Marks also feature on its corporate stationery including on email signatures, company letterhead, business cards and templates for internal and external presentations.
14. The Opponent’s Goods are available throughout Australia in over 12,500 outlets including Woolworths, Coles, Costco, IGA and other independent supermarkets, petrol stations and convenience stores including 7-11. As well as being widely sold in Australia, the Opponent’s Goods are available in 30 other countries.
15. Ms Green attests that the Opponent’s Marks are “so popular and well-recognised, iconic even” that the Opponent has opened an online store to sell its merchandise bearing the Opponent’s Marks with a party shirt being the first item offered for sale.
16. The Opponent’s Goods are promoted in online advertising, outdoor and marketplace advertising, in-store and point of sale promotions, television and radio commercials, events, partnerships, and print advertising and media articles. Illustrations of these various forms of advertising are included in the Green Declaration. Some examples of the Opponent’s advertising include:
i.the Opponent’s website at since 2002. Google Analytics data shows over 23 million page views of this website between 2010-2020;
ii.since 2005 on the Opponent’s dedicated website at which according to Google Analytics data had 2.4 million page views between 1 September 2014-31 December 2020;
iii.the Opponent’s social media accounts. Details of the number of followers of the Opponent’s UP&GO Facebook and Instagram accounts are provided;
iv.collaborations with social media influencers who promote the Opponent’s Goods on Facebook and Instagram;
v.emails to the Opponent’s 58,000 subscribers; and
vi.sponsorships and participation in events such as the Quicksilver pro surfing tournament, Race of Champions, NBA basketball tournaments and Biggest Loser and House Rules television programs.
17. Confidential sales revenue and marketing expenditure for 2011-2020 and brand tracking reports for 2019-2021 have been provided.
18. The Sen Declaration details the Applicant’s earlier application number 1218146 UP & UP in classes 29, 30, 31, 32 and 33, filed by the Applicant on 8 January 2008 (‘Earlier Application’). This application was opposed by the Opponent and the Applicant withdrew the Earlier Application on 2 June 2010 after the Opponent filed its evidence in support.
EIA
19. The Currey Declaration points to the fact that whilst an Examiner’s report issued on the Application only classification objections were raised. Ms Currey declares that citation objections were raised against the Earlier Application but for claims not included in the Application and for prior marks not owned by the Opponent. Ms Currey contends that the fact the Opponent’s Registrations were not cited as objections to the Trade Mark is consistent with the Applicant’s view that the Trade Mark and Opponent’s Marks are not deceptively similar. In support of this proposition, Ms Curry refers to other Australian registrations containing or consisting of ‘UP’ for the same or similar goods.
20. The remainder of the Curry Declaration argues that the Applicant’s Goods and Services are not the same or similar to those covered by the Opponent’s Registrations and that any reputation the Opponent may have in the Opponent’s marks does not extend beyond the Opponent’s Goods.
EIR
21. The EIR relates to examination of the Application and claims that the criteria used to search for prior conflicting marks did not disclose the Opponent’s Marks nor other marks containing both of the elements “UP” and “&”. Hence the Examiner did not consider the Opponent’s Marks and therefore did not decide that the Trade Mark was distinguishable from the Opponent’s Marks.
Discussion
Section 44
22. Section 44 relevantly provides:
44 Identical etc. trade marks
(1) Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of goods (applicant’s goods) must be rejected if:
(a) the applicant’s trade mark is substantially identical with, or deceptively similar to:
(i) a trade mark registered by another person in respect of similar goods or closely related services; or
(ii) a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and
(b) the priority date for the registration of the applicant’s trade mark in respect of the applicant’s goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.
Note 1: For deceptively similar see section 10.
Note 2: For similar goods see subsection 14(1).
Note 3: For priority date see section 12.
Note 4: The regulations may provide that an application must also be rejected if the trade mark is substantially identical with, or deceptively similar to, a protected international trade mark or a trade mark for which there is a request to extend international registration to Australia: see Part 17A.
(2) Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:
(a) it is substantially identical with, or deceptively similar to:
(i) a trade mark registered by another person in respect of similar services or closely related goods; or
(ii) a trade mark whose registration in respect of similar services or closely related goods is being sought by another person; and
(b) the priority date for the registration of the applicant’s trade mark in respect of the applicant’s services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.
The Applicant has not filed any evidence of use or other circumstances which would require a consideration under s 44(3) or (4). Hence, to successfully oppose the Application pursuant to s 44, the Opponent must establish that a trade mark registered or sought to be registered by a person other than the Applicant:
· has a priority date which is earlier than the Relevant Date (‘first requirement’);
· is in respect of goods and/or services which are similar or closely related to the Goods and Services (‘second requirement’); and
· is substantially identical with or deceptively similar to the Trade Mark (‘third requirement’).
24. In the SGP, the Opponent relies on the Opponent’s Registrations which satisfy the first requirement.
Comparison of goods and services
25. In relation to the second requirement, the parties agreed that the Applicant’s goods in classes 29, 30 and 32 are the same or similar to the goods covered by the Opponent’s Registrations in those classes. I am also in agreement that these two sets of goods are the same or similar.
26. The Applicant argued that the opposition under s 44 must fail in relation to the Applicant’s goods in classes 3, 5, 6, 7, 9, 10, 11, 16, 21 and 26 because in the Opponent’s written submissions, the Opponent has not identified any similar goods covered by the Opponent’s Registrations to the Applicant’s goods in these classes. However, the Opponent’s written submissions identified various “food supplement goods” claimed by the Applicant in class 5 as being similar to the Opponent’s registered goods. In particular, the Opponent noted the following items:
27. In oral arguments, the Opponent expanded its arguments to claim ‘infant formula, electrolyte replacement solutions, lactose intolerant preparations’ are similar to the registered goods identified above. The Applicant’s goods “infant formula, electrolyte replacement solutions, lactose intolerant preparations; pediatric shakes containing protein and calcium; nutritionally fortified beverages (adapted for medical purposes)” are hereinafter referred to as the “Relevant Class 5 Goods’.
28. The factors relevant to the consideration of whether goods are similar include the nature, purpose and use, respective trade channels and whether the ordinary consumer of the goods would regard the goods as being from a single source.[5] Product substitutability whilst not required, can also assist.[6]
[5] Re Jellenik’s Application [1946] RPC 59 (Romer J).
[6] SMA Solar Technology AG v Beyond the Building Systems Pty Ltd (No 5) [2012] FCA 1483, [75] (Perram J).
29. I am aware that many food and beverage products nowadays have added protein, calcium or electrolytes. Such protein or otherwise enriched products are sold side by side with the same goods without such additives. These enriched and non-enriched products are generally manufactured by the same traders and sold through the same trade channels for the same nature and purpose. The Registered Goods in class 29, in addition to the specific items identified above, include milk substitutes and other goods which I regard as similar to the Relevant Class 5 Goods. In my opinion, the Relevant Class 5 Goods are similar to the Registered Goods.
30. For the avoidance of doubt, I note that I do not regard any of the Applicant’s goods in classes 3, 6, 8, 9, 10, 11, 21 and 26, nor in class 5 other than the Relevant Class 5 Goods, to be similar to the goods of the Registrations.
31. With respect to the Applicant’s class 35 services, the Opponent argues that these services are closely related to the goods of the Registrations. The Opponent notes the comments of Lockhart J in Caterpillar Loader Hire (Holdings) Pty Ltd (t/a Willoughby’s Caterpillar Loader Hire Service) v Caterpillar Tractor Co:[7]
Confusion is more likely to arise where services protected by service marks necessarily involve the use or sale of goods or where services (for example, consultancy services) involve goods but can be provided either with or without the sale or promotion of goods.
[7] (1983) 48 ALR 511, 522.
32. The mere fact that the Applicant’s retailing services would notionally include the retail of the Opponent’s registered goods is not sufficient to support a finding that the retail services are closely related to the Opponent’s goods but rather it depends whether customers expect that the particular goods and their retail typically originate from the same source.[8] Whilst some retail outlets may sell their own branded food and beverages, it is my experience that many retail outlets do not and there is no evidence before me to indicate otherwise. I do not regard the Applicant’s class 35 services as closely related to the goods of the Opponent’s Registrations.
Comparison of Marks
[8] Woolworths Limited v Registrar of Trade Marks [1998] FCA 1268 (Wilcox J); see also Qantas Airways Limited v Edwards [2016] FCA 729, [126] (Yates J), Ragopika Pty Ltd v Padmasingh Isaac trading as Aachi Spices and Foods [2023] FCA 487, [45]-[48] (Kennett J).
33. Having established the first and second requirements to succeed on the s 44 ground of opposition with respect to the Relevant Class 5 Goods and goods in classes 29, 30 and 32, I turn to a consideration of whether the Trade Mark is substantially identical or deceptively similar to the Opponent’s Marks.
34. The parties appear to be in agreement that the issue is one of deceptive similarity rather than substantial identity. I agree with the parties that on a side by side comparison of the Trade Mark with each of the Opponent’s Marks, the difference in the last word GO as compared to UP is such that the Trade Mark is not substantially identical to any of the Opponent’s Marks.
35. Section 10 provides that a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.
36. The concepts of ‘deceive’ and ‘cause confusion’ were explained in Pioneer Hi-Bred Co v Hy-line Chicks Pty Ltd, where Richardson J said:
“Deceived” implies the creation of an incorrect belief or mental impression and causing “confusion” may go no further than perplexing or mixing up the minds of the purchasing public. Where the deception or confusion alleged is as to the source of the goods, deceived is equivalent to being misled into thinking that the goods bearing the applicant’s mark come from some other source and confused to being caused to wonder whether that might not be the case.[9]
[9] (1979) 96 RPC 410, 423 (citations omitted).
37. In Australian Woollen Mills Ltd v FS Walton & Co Ltd, [10] the High Court noted:
In deciding this question, the marks are not, of course to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, the similarities both of sound and of meaning must play an important part. The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded. The course of business and the way in which the particular of goods are sold gives, it may be said the setting, in the habits and observation of men considered in the mass affords standard.
[10] (1937) 58 CLR 641, 658 (Dixon CJ, Williams J, Webb J, Fullagar J, and Kitto J).
38. In applying the test for deceptive similarity, it is not appropriate to attribute any familiarity with the reputation in an earlier mark or that actual manner of use of that mark.[11]
[11] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [49] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).
39. For trade marks to be considered deceptively similar, there must be a real tangible danger of confusion which will be the case where an ordinary person would entertain a reasonable doubt about whether the goods come from the same trade source. [12]
[12] Southern Cross Refrigerating v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J); Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020, [50] (French J).
40. The Opponent asserts that the Trade Mark is visually, aurally and conceptually similar to the Opponent’s Marks as a result of the respective marks having the same number of syllables and sharing as the first and most important element [13] the distinctive feature ‘UP &’ followed by a short two letter word. The Opponent argues that the element “UP&” is distinctive with no meaning in relation to the relevant goods and there is no evidence that it is used or registered by other traders for the relevant goods. The spaces on either side of the “&” in the Trade Mark are immaterial.[14] The Applicant contends that it is inappropriate to compare parts of the marks[15] and focus on the shared element ‘UP &” to the exclusion of the visual and aural differences in the last elements UP/GO. The Applicant argues that the last elements UP and GO are common English words which will not be mispronounced or slurred. The Opponent notes the fact that the marks under consideration are comprised of common English words does not preclude a finding of deceptive similarity.[16]
[13] London Lubricants (1920) Ltd’s Appn (1925) 42 RPC 264, 279 (Sargant LJ). See also, C A Henschke & Co v Rosemount Estates Pty Ltd [1999] FCA 1561, [35] (Finn J); Conde Nast Publications Pty Ltd v Virginia Taylor (1998) 41 IPR 505, 511 (Burchett J).
[14] Carnival Cruise Lines Inc v Sitmar Cruises Limited [1994] FCA 68, [63] (Gummow J)
[15] Anheuser-Busch Inc v Budejovicky Budvar [2002] FCA 390; 56 IPR 182, [154] (Allsop J).
[16] See Johnson & Johnson v Kalnin (1993) 114 ALR 215 (Gummow J); Hashtag Burgers Pty Ltd v In-N-Out Burgers Inc [2020] FCAFC 235; 385 ALR 514 (Nicholas, Yates and Burley JJ).
41. Further, the Opponent submits both marks convey the idea of an upwards motion. The Applicant argues that the Trade Mark evokes the phrase ‘on the up and up’ whereas the Opponent’s Mark suggests ‘get up and go’. I do not find the Opponent’s argument persuasive. If that argument is accepted, numerous marks containing the word ‘UP’ would be considered to convey a similar meaning.
42. On balance, in my view, the marks UP& GO and UP & UP are not deceptively similar. Despite the common element ‘UP&’, I find the two marks to be aurally different and whilst there is a degree of visual similarity arising from the common element, the differences in the last word are unlikely to be overlooked. I concur with the Applicant that the meaning immediately called to mind by each of the marks is ‘get up and go’ as compared to ‘on the up and up’. I do not consider the present marks to be one where contextual confusion is likely in the same manner as EASY JEST and JEST,[17] HUGGIES and HUGGIE MUMMY[18] or MONSTER and MONSTER MAN.[19]
[17] John Fitton & Company Limited’s Application (1949) 66 RPC 110.
[18] Kimberly-Clark Worldwide Inc v Goulimis [2008] FCA 1415 (Jagot J).
[19] Monster Energy Company v Home Focus Development Limited [2021] ATMO 20 (Hearing Officer A Richards).
43. I am not satisfied that there is a real tangible danger of confusion between the Opponent’s Marks and the Trade Mark. Accordingly, the Opponent has not established a ground of opposition under s 44.
Section 60
44. Section 60 of the Act relevantly provides:
60 Trade mark similar to trade mark that has acquired a reputation in Australia
The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:
(a) another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and
(b) because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.
45. To establish this ground of opposition, the Opponent must demonstrate the existence of another trade mark which had acquired a reputation in Australia before the Relevant Date. The Opponent must then establish that because of this reputation, use of the Trade Mark would be likely to deceive or cause confusion.
46. Section 60 does not require that the Opponent’s Goods are similar to the Goods and Services nor that the Opponent’s mark(s) on which it relies be substantially identical or deceptively similar to the Trade Mark. However, the closer the similarity, the greater the likelihood of deception or confusion.[20]
[20] Qantas Airways Ltd v Edwards [2016] FCA 729, [142] (Yates J).
47. The SGP identified the Opponent’s Registrations as the basis for this ground and asserted that there is a substantial reputation in the Opponent’s Marks as a result of the use for the Opponent’s Goods such that use of the Trade Mark is likely to deceive or cause confusion.
48. The meaning of reputation was considered by Kenny J in McCormick & Co Inc v McCormick (‘McCormick’) as referring to, ‘the recognition of the [trade mark] by the public generally’.[21] Her Honour quoted with approval the following statement of Lockhart J in ConAgra Inc v McCain Foods (Aust) Pty Ltd:
[R]eputation within the jurisdiction may be proved by a variety of means including advertisements on television, or radio or in magazines and newspapers within the forum. It may be established by showing constant travel of people between other countries and the forum, and that people within the forum (whether residents there or persons simply visiting there from other countries) are exposed to the goods of the overseas owner ...[22]
[21] [2000] FCA 1335, [81] (‘McCormick’).
[22] [1992] FCA 159, [118] (‘ConAgra’).
49. Further, Kenny J stated in McCormick that:
In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product ... public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things.[23]
[23] McCormick (n 21) [86].
50. The reputation in the other trade mark must be amongst a ‘significant or substantial’ number of Australian consumers but this is tempered by the nature of the relevant market.[24] Further, the ‘existence and extent of reputation’ must be established as a matter of fact by the Opponent.[25]
[24] See, eg, Renaud Cointreau & Cie v Cordon Bleu International Ltee [2001] FCA 1170, [75] (Moore, Tamberlin and Goldberg JJ).
[25] ConAgra (n 22) [77].
51. The Opponent has used the Opponent’s Mark for the Opponent’s Goods on a substantial scale for over 20 years with the Opponent’s products being available in a large number of stores around Australia and millions of units of those goods being sold annually. The Opponent’s Goods bearing the Opponent’s Mark are extensively promoted including through sponsorships and merchandise. There is a very high degree of brand recognition amongst consumers and I am satisfied that the Opponent has developed a significant reputation in Australia amongst consumers for the Opponent’s Goods.
52. The Opponent argues that its reputation is not limited to food products buts extends to stationary, merchandise and even wrapping paper. The Opponent’s promotional items are distributed to employees, retailers and store staff, as well as consumers. The Green Declaration includes evidence of 4 giveaways of shirts, wrapping paper, coolers and speakers (although it is not apparent if the speakers are branded with the Opponent’s Mark) as well as undated photos of various apparel, bags and other merchandise. A single social media post showing use of the mark for wrapping paper in a Christmas giveaway is not sufficient to establish a reputation in the mark for such goods. The Opponent’s reputation may extend to some extent to merchandise given that the Opponent now has an online store to sell products such as its party shirt. However, there is a lack of detail in the evidence about the use of the Opponent’s Marks for merchandise and it is not clear when the online store commenced selling products. The table in Exhibit SGP-4 indicates that a relatively small amount of branded merchandise was given away in August-December 2020. Whilst use of the Opponent’s Marks for merchandise reinforces its reputation in the Opponent’s Goods, I am not satisfied based on the Opponent’s evidence that its reputation in the Opponent’s Marks extends to merchandise generally.
53. I turn now to whether there is a likelihood of confusion with use of the Trade Mark as a result of the Opponent’s reputation. The Applicant argues that the Opponent’s use of SANITARIUM on the Opponent’s Goods is sufficient to dispel a likelihood of confusion. Iin my view, the Opponent’s Marks are used much more prominently than SANITARIUM in connection with the Opponent’s Goods and I do not consider that the Opponent’s use of its house brand SANTIARIUM will eliminate any likelihood of confusion. In the present case, whilst I have found that the Opponent’s Mark is not deceptively similar to the Trade Mark, there is a degree of similarity. Given the immense popularity of the Opponent’s Marks and widespread use, and similarities of the Trade Mark and Opponent’s Marks, I consider that a significant number of consumers would experience a reasonable doubt as to the existence of some sort of connection with the Opponent’s Marks and the Trade Mark if it were used on the Relevant Class 5 Goods and goods in classes 29, 30 and 32.
54. The Opponent also argued that given its reputation for the Opponent’s Goods that use of the Trade Mark for items used in relation to food such as tableware, coolers and drink bottles would be likely to deceive or cause confusion. I am not persuaded by this argument or the cases relied on the Opponent in the Opponent’s written submissions. I believe that the other goods claimed in the Application are sufficiently different from the Opponent’s Goods such that confusion or deception is unlikely.
55. The Opponent has established a ground of opposition under s 60 in relation to the Relevant Class 5 Goods and goods claimed in classes 29, 30 and 32. This ground is not established in relation to the other goods or services of the Application.
Section 42(b)
56. Pursuant to s 42(b), a trade mark must be rejected if its use would be contrary to law.
57. The onus is on the Opponent to establish that use of the Trade Mark by the Applicant would be, rather than could be, contrary to law on the balance of probabilities.[26] The relevant time for assessing whether an application is contrary to law is at the Relevant Date.
[26] Advantage Rent-a-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683, [28] (Madgwick J).
58. In the SGP, the Opponent claims that use of the Trade Mark will contravene ss 18 and 29 of the Australian Consumer Law (‘ACL’) being Schedule 2 to the Competition and Consumer Act 2010 (Cth).
59. Unlike s 60, ss 18 and 29 of the ACL cannot be established by demonstrating use of the Trade Mark would merely give consumers cause to wonder if there is some association with the Opponent. Several cases confirm that more is required to establish a likelihood of misleading or deceptive conduct under the ACL than is the case with trade marks likely to deceive or cause confusion under s 60.[27] Having found that use of the Trade Mark is not likely to deceive or confuse under s 60 for the Applicant’s Goods in classes 3, 5 (other than the Relevant Class 5 Goods), 6, 8, 9, 10, 11, 16, 21, 26 and services in class 35, consequently I find that under the stricter test posited by the ACL,[28] the Opponent has also failed to establish that the Applicant’s use of the Trade Mark would be contrary to ss 18 or 29 of the ACL for those goods and services.
[27] See, eg , Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 209-10 (Mason J).
[28] See, eg, Ownit Homes Pty Ltd v Ownit Conveyancing Pty Ltd [2005] ATMO 47, [36] (Hearing Officer Williams); Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198 (Gibbs CJ).
Decision
60. The Opponent has been successful in establishing a ground of opposition under s 60 for the Relevant Class 5 Goods and goods in classes 29, 30 and 32.
61. The Opponent argued that having established a ground of opposition for some goods, the Application should be rejected in its entirety.[29] In circumstances where an opposition has been established in respect of some, but not all of an applicant’s goods or services the Registrar may proceed to reject the application in its entirety but also has a discretion to allow an applicant to amend the application to remove goods and services for which a ground of opposition has been established.
[29] Apple Inc v Registrar of Trade Marks [2014] FCA 1304, [232] (Yates J).
62. Given the breadth of goods and services claimed in the Application, I considered it appropriate to offer the Applicant the opportunity to amend the Application. On 29 September 2023, I notified the Applicant that it was my intention to refuse to register the Trade Mark unless the Applicant agreed to remove the Relevant Class 5 Goods and goods in classes 29, 30 and 32.
63. On 7 October 2023, the Applicant requested amendment of the Application as outlined in [62]. As such, trade mark application 2127474 may proceed to registration one month from the date of this decision for:
Class 3: Cleaning preparations for household purposes; laundry detergent; fabric softeners and conditioners for laundry use; all purpose drain openers; automatic and liquid dishwashing detergents and additives; cleaning preparations for carpets, rugs and upholstery; disposable wipes impregnated with chemicals or compounds for household use; hair shampoo, conditioner; baby bath cleansers; baby lotion; baby oil, baby oil gel and creamy baby oil; baby powder and cornstarch baby powder; baby shampoo and hair conditioners; baby wipes; cosmetic pads; cotton swabs, sticks, balls, and puffs for personal cosmetic use; non-medicated diaper rash ointment; disposable wipes impregnated with chemicals or compounds for personal hygiene; non-medicated foot powder; petroleum jelly for cosmetic purposes; skin care preparations, namely, body wash, body powder, body scrub, hand cream, and skin lotion; liquid skin soap; bath and shower gel; bubble bath; shave foam; shave gel, shave cream; deodorants and antiperspirants; disposable wipes impregnated with chemicals or compounds for personal hygiene; lip balm; non-medicated witch hazel preparations for cosmetic purposes; non-medicated acne treatment preparations; sunscreen lotions, sprays and creams; cleaners and cleansers for skin care, laundry or household use; breath fresheners; mouthwash; toothpaste; tooth gel and powder; teeth cleaning preparations; tooth whitening preparations; room fragrances; pre-moistened towelettes for household cleaning
Class 5: Alcohol swabs for topical use, alcohol-prepared pads; adhesive bandages; air fresheners and room deodorizers; alcohol for topical use; all purpose disinfectants; analgesics and pain relievers; anti-bacterial and anti-microbial hand and lotion soap; antibiotic creams and ointments; antifungal preparations for personal use; anti-itch creams, lotions, and ointments; antiseptic and medicated mouthwashes; carpet and room deodorizers; disinfectant mildew removers; Epsom salts; feminine hygiene preparations, namely, douches; feminine hygiene and protection, namely, tampons, maxi pads, mini pads, and panty liners; gauze; hemorrhoid treatment preparations and pads; hand sanitizing and disinfecting preparations; household disinfectants with cleaning, deodorizing and germicidal properties; hydrocortisone creams and ointments; hydrogen peroxide for medical use; medicated shampoo; lice treatment preparations; medical adhesive tape; medicated diaper ointment; medicated foot powder; medicated body powder; medicated pre-moistened wipes; non-adhesive bandages and adhesives for bandages for skin wounds; odour eliminators for use on fabrics; ointments for the prevention and treatment of diaper rash and other skin irritations; ophthalmic preparations, namely eye drops, eye drops containing antihistamines and decongestants, lubricating and rewetting solutions, sterile saline solution, therapeutic ophthalmic preparations; ophthalmic solutions for use with contact lenses, namely, contact lens cleaners, contact lens soaking, wetting and disinfecting solutions and tablets; ovulation test kits; personal lubricating preparations; petroleum jelly for medical purposes; pharmaceutical preparations, namely, allergy relief medications, analgesics and pain relievers, analgesic sleeping aids, antihistamines, aspirin, cold medications; cough treatment medications and suppressants; decongestants, fever reducers, flu medications, menstrual pain and cramp relievers; motion sickness treatment preparations, nasal spray preparations, preparations for the treatment of asthma and hay fever; respiratory infection medications; sinus medications, sleep-aid preparations, throat lozenges, drops and sprays; pharmaceutical preparations, namely, antacids, acid reducers, anti-gas preparations, anti-diarrhea preparations, enema preparations, laxatives, mineral oil, stool softeners; pharmaceutical preparations for the treatment, relief, and prevention of gastrointestinal distress, gastrointestinal disorders, constipation; pregnancy test kits for home use; preparations for disinfecting floors; smoking cessation preparations; supplements, namely, vitamin, mineral, dietary, herbal, nutritional, and homeopathic supplements; witch hazel preparations for medical purposes; acne medications; acne treatment preparations; first aid kits; denture adhesives; disposable diapers; disposable pads for diaper changing; disposable swim pants for children and infants; disposable training pants; disposable housebreaking pads for pets
Class 6: Aluminum foil
Class 8: Shavers, namely, razors and razor blades, corn and callus removers; scissors; disposable tableware, namely, forks, knives and spoons
Class 9: Batteries; magnets for use with memo boards and refrigerators; magnet boards
Class 10: Baby bottle liners; gloves for medical use; thermometers for medical use; elastic bandages; compression bandages; devices for monitoring blood glucose for medical purposes; pill cutters; orthotic inserts for footwear; heating and cooling packs filled with chemical substances that react when required to warm or cool the body
Class 11: Light bulbs; drinking water filters
Class 16: Stationery; paper; envelopes; pens; pencils; markers; crayons; paint kits for arts and crafts; paint brushes; staples; rubber bands; push pins; paper clips; adhesive tape for household or stationery use; glue and adhesives for household or stationery use; glue sticks for stationery or household use; paper party supplies, namely, bags, decorations, tablecloths, tableware, namely, paper napkins, paper place mats, paper doilies, paper table linens, crepe paper, invitations, notecards; gift cards, plastic and paper gift wrap; paper gift bows and tags; facial tissue; bathroom tissue; plastic disposable diaper bags; lunch bags; paper baby bibs; paper towels; plastic bags, namely, trash and garbage bags, sandwich bags, food storage and freezer bags for household use, general purpose plastic and paper bags; plastic wrap; shelf paper; tissue paper; paper pet crate mats; plastic bags for disposing of pet waste; framed art pictures and prints, photo albums, bookends, memo boards, picture boards, desk organizers in the nature of in/out boxes, paper shredders, pencil sharpeners, binders, notebooks, letter holders, file and memo sorters, adhesive tape dispensers, paper hole punchers, pencil cups, desk drawer organizers, hanging file folders, dry erase writing boards, desktop business card holders, sheet protectors in the nature of protective covers for sheets of paper, document portfolios, presentation folders, binder pockets, paper report covers, index dividers, file boxes for storage of business and personal records, coupon holders, cardboard mailing tubes, stationery note cards, note pads containing adhesive on one side of the sheet for attachment to surfaces, paper inserts for photo albums; staple remover, drawing ruler, letter opener, binder clips, rubber erasers, lead refills for mechanical pencils, clip boards; disposable lawn and leaf bags
Class 21: Dental floss; dental tape; toothbrushes; dental floss dispensers; denture baths; body sponges; cosmetic sponges; cosmetic brushes; hair combs; hair brushes; disposable latex gloves for general use; disposable plates, bowls and cups; paper baking cups; disposable paperboard bakeware; pet brushes; pet feeding dishes; insect traps; food storage containers; toothpicks; brooms; mops; household cleaning brushes and sponges; clothes brushes; toilet brushes; dusting brushes; dishwashing brushes; pot cleaning brushes; tub and bath brushes; food brushes; clothes pins; waste baskets; laundry baskets; drinking straws; pill boxes for personal use; personal dispensers for pills for domestic use
Class 26: Hair accessories, namely, bobby pins, barrettes, clamps, clips, hair bands, bows, buckles, chopsticks, hair coloring and frosting caps, nets, ribbons, rods, scrunchies; non-electric hair curlers and rollers; ribbons and bows for gift wrapping
Class 35: Retail store services and online retail store services featuring a wide variety of consumer goods
64. If the Registrar is served with a notice of appeal before that time, I direct that registration shall not occur until the appeal has been decided or discontinued and the disposition of the application should be in accordance with the court’s order or direction.
65. Both parties have sought an award of costs. Costs usually follow the event. However, as each party has been partially successful, it is appropriate in this case that each party bears its own costs.
Tracey Berger
Hearing Officer
Delegate of the Registrar of Trade Marks
10 October 2023
ANNEXURE A
Class 3: Cleaning preparations for household purposes; laundry detergent; fabric softeners and conditioners for laundry use; all purpose drain openers; automatic and liquid dishwashing detergents and additives; cleaning preparations for carpets, rugs and upholstery; disposable wipes impregnated with chemicals or compounds for household use; hair shampoo, conditioner; baby bath cleansers; baby lotion; baby oil, baby oil gel and creamy baby oil; baby powder and cornstarch baby powder; baby shampoo and hair conditioners; baby wipes; cosmetic pads; cotton swabs, sticks, balls, and puffs for personal cosmetic use; non-medicated diaper rash ointment; disposable wipes impregnated with chemicals or compounds for personal hygiene; non-medicated foot powder; petroleum jelly for cosmetic purposes; skin care preparations, namely, body wash, body powder, body scrub, hand cream, and skin lotion; liquid skin soap; bath and shower gel; bubble bath; shave foam; shave gel, shave cream; deodorants and antiperspirants; disposable wipes impregnated with chemicals or compounds for personal hygiene; lip balm; non-medicated witch hazel preparations for cosmetic purposes; non-medicated acne treatment preparations; sunscreen lotions, sprays and creams; cleaners and cleansers for skin care, laundry or household use; breath fresheners; mouthwash; toothpaste; tooth gel and powder; teeth cleaning preparations; tooth whitening preparations; room fragrances; pre-moistened towelettes for household cleaning
Class 5: Alcohol swabs for topical use, alcohol-prepared pads; adhesive bandages; air fresheners and room deodorizers; alcohol for topical use; all purpose disinfectants; analgesics and pain relievers; anti-bacterial and anti-microbial hand and lotion soap; antibiotic creams and ointments; antifungal preparations for personal use; anti-itch creams, lotions, and ointments; antiseptic and medicated mouthwashes; carpet and room deodorizers; disinfectant mildew removers; electrolyte replacement solutions; Epsom salts; feminine hygiene preparations, namely, douches; feminine hygiene and protection, namely, tampons, maxi pads, mini pads, and panty liners; gauze; hemorrhoid treatment preparations and pads; hand sanitizing and disinfecting preparations; household disinfectants with cleaning, deodorizing and germicidal properties; hydrocortisone creams and ointments; hydrogen peroxide for medical use; infant formula; medicated shampoo; lice treatment preparations; medical adhesive tape; medicated diaper ointment; medicated foot powder; medicated body powder; medicated pre-moistened wipes; non-adhesive bandages and adhesives for bandages for skin wounds; odour eliminators for use on fabrics; ointments for the prevention and treatment of diaper rash and other skin irritations; ophthalmic preparations, namely eye drops, eye drops containing antihistamines and decongestants, lubricating and rewetting solutions, sterile saline solution, therapeutic ophthalmic preparations; ophthalmic solutions for use with contact lenses, namely, contact lens cleaners, contact lens soaking, wetting and disinfecting solutions and tablets; ovulation test kits; personal lubricating preparations; petroleum jelly for medical purposes; pharmaceutical preparations, namely, allergy relief medications, analgesics and pain relievers, analgesic sleeping aids, antihistamines, aspirin, cold medications; cough treatment medications and suppressants; decongestants, fever reducers, flu medications, menstrual pain and cramp relievers; motion sickness treatment preparations, nasal spray preparations, preparations for the treatment of asthma and hay fever; respiratory infection medications; sinus medications, sleep-aid preparations, throat lozenges, drops and sprays; pharmaceutical preparations, namely, antacids, acid reducers, anti-gas preparations, anti-diarrhea preparations, enema preparations, laxatives, lactose intolerance preparations, mineral oil, stool softeners; pharmaceutical preparations for the treatment, relief, and prevention of gastrointestinal distress, gastrointestinal disorders, constipation; pregnancy test kits for home use; preparations for disinfecting floors; smoking cessation preparations; supplements, namely, vitamin, mineral, dietary, herbal, nutritional, and homeopathic supplements; pediatric shakes containing protein and calcium; nutritionally fortified beverages (adapted for medical purposes); witch hazel preparations for medical purposes; acne medications; acne treatment preparations; first aid kits; denture adhesives; disposable diapers; disposable pads for diaper changing; disposable swim pants for children and infants; disposable training pants; disposable housebreaking pads for pets
Class 6: Aluminum foil
Class 8: Shavers, namely, razors and razor blades, corn and callus removers; scissors; disposable tableware, namely, forks, knives and spoons
Class 9: Batteries; magnets for use with memo boards and refrigerators; magnet boards
Class 10: Baby bottle liners; gloves for medical use; thermometers for medical use; elastic bandages; compression bandages; devices for monitoring blood glucose for medical purposes; pill cutters; orthotic inserts for footwear; heating and cooling packs filled with chemical substances that react when required to warm or cool the body
Class 11: Light bulbs; drinking water filters
Class 16: Stationery; paper; envelopes; pens; pencils; markers; crayons; paint kits for arts and crafts; paint brushes; staples; rubber bands; push pins; paper clips; adhesive tape for household or stationery use; glue and adhesives for household or stationery use; glue sticks for stationery or household use; paper party supplies, namely, bags, decorations, tablecloths, tableware, namely, paper napkins, paper place mats, paper doilies, paper table linens, crepe paper, invitations, notecards; gift cards, plastic and paper gift wrap; paper gift bows and tags; facial tissue; bathroom tissue; plastic disposable diaper bags; lunch bags; paper baby bibs; paper towels; plastic bags, namely, trash and garbage bags, sandwich bags, food storage and freezer bags for household use, general purpose plastic and paper bags; plastic wrap; shelf paper; tissue paper; paper pet crate mats; plastic bags for disposing of pet waste; framed art pictures and prints, photo albums, bookends, memo boards, picture boards, desk organizers in the nature of in/out boxes, paper shredders, pencil sharpeners, binders, notebooks, letter holders, file and memo sorters, adhesive tape dispensers, paper hole punchers, pencil cups, desk drawer organizers, hanging file folders, dry erase writing boards, desktop business card holders, sheet protectors in the nature of protective covers for sheets of paper, document portfolios, presentation folders, binder pockets, paper report covers, index dividers, file boxes for storage of business and personal records, coupon holders, cardboard mailing tubes, stationery note cards, note pads containing adhesive on one side of the sheet for attachment to surfaces, paper inserts for photo albums; staple remover, drawing ruler, letter opener, binder clips, rubber erasers, lead refills for mechanical pencils, clip boards; disposable lawn and leaf bags
Class 21: Dental floss; dental tape; toothbrushes; dental floss dispensers; denture baths; body sponges; cosmetic sponges; cosmetic brushes; hair combs; hair brushes; disposable latex gloves for general use; disposable plates, bowls and cups; paper baking cups; disposable paperboard bakeware; pet brushes; pet feeding dishes; insect traps; food storage containers; toothpicks; brooms; mops; household cleaning brushes and sponges; clothes brushes; toilet brushes; dusting brushes; dishwashing brushes; pot cleaning brushes; tub and bath brushes; food brushes; clothes pins; waste baskets; laundry baskets; drinking straws; pill boxes for personal use; personal dispensers for pills for domestic use
Class 26: Hair accessories, namely, bobby pins, barrettes, clamps, clips, hair bands, bows, buckles, chopsticks, hair coloring and frosting caps, nets, ribbons, rods, scrunchies; non-electric hair curlers and rollers; ribbons and bows for gift wrapping
Class 29: Food products in the class, namely, processed, and dried fruits and vegetables; cooked fruits and vegetables; dried and cooked fruit and vegetables; snack mix consisting primarily of processed fruits, processed nuts and/or raisins; vegetable-based snack foods
Class 30: Food products in the class, namely, dried pasta; grain-based snack foods
Class 32: protein drinks; vitamin enriched beverages, including beverages containing vitamin C
Class 35: Retail store services and online retail store services featuring a wide variety of consumer goods
ANNEXURE B
| Number | Trade Mark | Priority Date | Goods[30] |
| 722872 | UP&GO | 27 Nov 1996 | Class 32: Non-alcoholic beverages including cereal based beverages also containing soy and dairy milk, excluding carbonated beverages, mineral water and fruit drinks |
| 939110 | UP&GO | 19 Dec 2002 | Class 29: Milk; milk based beverages; milk products; dairy substitutes in this class being milk beverages and milk products derived from plant sources including soy beans, almonds and rice; eggs; prepared nuts; nut and seed spreads; nut butters; jellies; jams; compotes; fruit sauces; edible oils and fats; snack foods in this class; preserved herbs; cooked, dried, frozen or preserved fruits; cooked, dried, frozen or preserved vegetables; cooked, dried, frozen or preserved meals; food products in this class containing or made from vegetables or fruits; mixtures in this class comprised primarily of dried fruits, prepared nuts, seeds, milk products including yogurt, dairy substitutes in this class or any combination of the foregoing; soups; preparations for making soups; meat; fish; poultry; game; meat extracts Class 30: Cereals and products made from or containing cereals including breakfast cereals; bread; pastry products; biscuits; cookies; crackers; rice cakes; confectionery; energy bars; snack foods in this class; ice cream; frozen yogurt; custard; ices; ice; sauces (condiments); mustard; seasonings; spices; flavourings; flavourings for beverages; coffee; artificial coffee; tea; cocoa; sugar; honey, treacle; golden syrup; yeast; baking powder |
| 1050702 | UP&GO ENERGIZE | 13 Apr 2005 | Class 29: Preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats; protein for human consumption including soy bean protein and protein snack foods and foodstuffs Class 30: Flour and preparations made from cereals, bread, biscuits, cookies, cakes, pastry and confectionery, ices, ice cream; frozen confections preparations for making ice cream, water ices and frozen confections; honey and honey substitutes, snack foods, prepared meals, desserts and puddings; yeast, baking powder; salt, mustard; vinegar, sauces (condiments); spices; ice Class 32: Mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; fruit flavoured drinks and vegetable flavoured drinks; syrups and other preparations for making beverages; protein drinks, protein shakes and other protein beverages |
| 1650928 | UP&GO | 7 Oct 2014 | Class 31: Agricultural and horticultural products and grains not included in other classes; fresh fruits and vegetables; seeds, nuts, natural plants and flowers; all the aforesaid being for human consumption and excluding animal foodstuffs and supplements |
| 1653547 | 21 Oct 2014 | Class 29: Milk; milk based beverages; milk products; soya milk; flavoured and unflavoured whole soya bean milk; flavoured and unflavoured soya-derived beverages and foodstuffs in the nature of milk; soya based food beverage used as a milk substitute; dairy substitutes in this class being milk beverages and milk products derived from plant sources including soya beans, almonds and rice; eggs; prepared nuts; nut and seed spreads; nut butters; jellies; jams; compotes; edible oils and fats; snack foods consisting primarily of meat, fish, poultry, vegetables or fruits; cooked, dried, frozen or preserved fruits; cooked, dried, frozen or preserved vegetables; cooked, dried, frozen or preserved meals consisting primarily of meat, fish, poultry, vegetables or fruit; food products in this class containing or made from vegetables or fruits; mixtures in this class comprised primarily of dried fruits, prepared nuts, seeds, milk products including yoghurt, dairy substitutes in this class or any combination of the foregoing; soups; preparations for making soups; meat; fish; poultry; game; meat extracts Class 30: Cereals and products made from or containing cereals including breakfast cereals and substitutes therefor, and preparations and extracts made therefrom; drinks made from cereals; bread; pastry products; biscuits; cakes; cookies; crackers; rice cakes; confectionery; energy bars consisting primarily of grains and cereals; cereal derived food bars; snack foods consisting primarily of grains; cereal based snack food; ice cream; frozen yogurt; custard; ices; ice; fruit sauces; sauces (condiments); mustard; seasonings; spices; flavourings; flavourings for beverages; coffee; artificial coffee; tea; cocoa; sugar; honey, treacle; golden syrup; yeast; baking powder; full fat, low fat and fat-free plain chocolate, coffee, vanilla, strawberry, banana and supplemented soya-bean derived beverages Class 32: Non-alcoholic beverages including cereal based beverages also containing soya and dairy milk; mineral and aerated water and other non-alcoholic drinks; fruit- and other-based syrups, and other preparations for making beverages; soft drinks and fruit juices; soya-based beverages with or without fruit or vegetable juices or extracts; plain and fortified soya-bean derived beverages | |
| 2019536 | 28 June 2019 | Class 29: Dairy products; milk; milk based beverages; milk products; milk-based food preparations with added vitamins and minerals; cheese; cottage cheese; cream cheese; butter; yoghurt; yoghurt spread; whey; dairy substitutes; cheese substitutes; non-dairy cheese; cottage cheese substitutes; non-dairy cottage cheese substitutes; cream cheese substitutes; non-dairy cream cheese substitutes; butter substitutes; non-dairy butter; yoghurt substitutes; non-dairy yoghurt; milk substitutes; non-dairy milk; soy-based beverages used as milk substitutes, including soy milk; nut milks including peanut milk, almond milk, cashew milk and coconut milk; rice milk; tofu; products made from tofu; preserved soy beans and products made from preserved soy beans; soy protein; protein for human consumption; vegetable protein for use as an extender or meat substitute; textured vegetable protein for use as an extender or meat substitute; soy products in this class; soy-based snack foods; baked beans; bean curd and preparations made wholly or principally of bean curd; preserved, dried, frozen, processed and cooked fruits and vegetables; pickles; garlic paste; garlic preserves; preserved garlic; crystallised fruits; preserved lentils; dried lentils; preparations made from lentils; pulses; croquettes; prepared foodstuffs consisting of or made substantially of legumes; jellies; jams; compotes; food spreads, namely, meat spreads and vegetable spreads; fruit spreads; peanut butter; nut butters; nut cheese; soy based spreads and dips; tahini; hummus; tapenade; falafel and falafel mixes; nut and seed spreads; nut products; processed nuts; prepared nuts; roasted nuts; nut meats; nut extracts for food, not being food flavourings; roasted nuts; flavoured nuts; nut based foods containing cereal; combined nut and cereal foods (predominantly nuts); malted nut powder (predominantly nuts); eggs and egg products; tomato juice for cooking; tomato puree; juice for cooking; soup, bouillon, stock and broth and preparations for the foregoing; burgers and hamburgers in this class; edible oils; edible fats; meat, fish, seafood, poultry and game; meat extracts; meat substitutes; fish substitutes; poultry substitutes; game substitutes; meat extract substitutes; snacks prepared from meat, fish, seafood, poultry, game, fruit, vegetables, soy products, dairy products, nuts, meat substitutes, fish substitutes, seafood substitutes, poultry substitutes, game substitutes, dairy substitutes or in any combination of the foregoing; prepared and semi-prepared meals consisting primarily of meat, fish, seafood, poultry, game, fruit, vegetables, soy products, dairy products, nuts, meat substitutes, fish substitutes, seafood substitutes, poultry substitutes, game substitutes, dairy substitutes or in any combination of the foregoing Class 30: Breakfast cereal; cereal preparations; cereal products; processed cereals; foods consisting predominantly of cereals; cereal based snacks; cereal extracts for food and for use as food flavourings; cereal based foods containing nuts; cereal-based beverages, being cereal-based foods; cereal-based food preparations with added, protein/and/or vitamins and/or minerals in this class; cereal-based energy bars and snack foods; cornflakes; muesli; muesli-based snack foods; oat flakes; oat-based snack foods; wheat-based snack foods; grain and grain products; flour; bread; breadcrumbs; pastry; pastry products; biscuits; cookies; crackers; cakes; preparations for making cakes; yeast; yeast products; yeast extracts; yeast spreads; rice and rice products; rice cakes; rice-based snack foods; rice-based prepared meals; soy flour and sauce; soy-based products in this class; corn snacks; custard; gravy; malt extract for food; seasonings other than essential oils; flavourings other than essential oils; flavourings for beverages other than essential oils; condiments; malted wheat extract; farinaceous foods; farinaceous food pastes; preserved herbs; soy bean paste; pasta; pasta-based prepared meals; ravioli; lasagne; noodles; noodle-based prepared meals; semolina; sago; tapioca; salad dressings; pies; pizzas; burgers and hamburgers in this class; prepared meals consisting predominantly of rice, pasta or noodles; vegetarian meals consisting predominantly of rice, pasta or noodles; almond paste; bean meal; sausage binding materials; starch for food; vanilla and vanilla substitutes; fruit sauces; sauces; baking-powder; salt; mustard; vinegar; sauces (condiments); spices; spice pastes; chutneys and relishes; mayonnaise; aioli; garlic puree; marinades and marinade mixes; ice; ices; ice cream; frozen yoghurt; frozen confections; confectionery; chocolate; desserts and puddings in this class; chocolate desserts; dessert puddings; dessert souffles; muesli desserts; ice cream desserts; instant dessert pudding mixes; honey; sugar; treacle; golden syrup; natural sweeteners; coffee; coffee-based beverages; coffee substitutes; artificial coffee; tea; tea-based beverages; kombucha; tea substitutes; artificial tea; cocoa; cocoa-based beverages; cocoa substitutes; artificial cocoa; chocolate-based beverages; herbal beverages other than for medicinal use Class 32: Mineral and aerated waters; non-alcoholic drinks; fruit drinks and fruit juices; fruit-based beverages; vegetable-based beverages; syrups and other non-alcoholic preparations for making beverages; soy-based beverages not being milk substitutes; rice-based beverages not being milk substitutes; nut-based beverages not being milk substitutes; isotonic beverages; smoothies |
[30] A summary of the goods is set out in the table and the full specifications are detailed in Annexure B.
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