B.R. v HGWIT Pty Ltd as trustee for Plant Extracts Trust

This matter concerned an opposition by B.R. (the Opponent) to the registration of a trade mark by HGWIT Pty Ltd as trustee for Plant Extracts Trust (the Applicant). The opposition was brought under section 52 of the *Trade Marks Act 1995* (Cth), with the Opponent relying on grounds under sections 44 and 60 of the Act. The decision was made by Tracey Berger.

The primary legal issue before the court was whether the Opponent had established sufficient grounds for opposing the Applicant's trade mark registration. Specifically, the court was required to determine if the Opponent's trade mark had acquired a reputation in Australia at the relevant date, as required by section 60 of the Act, and whether the use of the Applicant's trade mark was likely to deceive or cause confusion.

The court considered the meaning of "reputation" under section 60, referencing previous decisions that defined it as recognition by the public generally and requiring proof of exposure through various media or travel. For section 60 to succeed, reputation must be established among a significant number of Australian consumers, though this is influenced by the nature of the market. The Opponent claimed use of its trade mark BOLOGIQUE RECHERCHE in connection with skincare products and treatments since the 1970s, with significant global use. However, the court found that use in Australia was more recent, with low sales and minimal consumer exposure until shortly before the relevant date. Given the competitive nature of the beauty industry, the court was not satisfied that the Opponent possessed the requisite reputation in Australia at the relevant date, and therefore the section 60 ground of opposition was unsuccessful. The court did not make specific findings on section 44, but the overall outcome indicates no grounds were established.