Bargain Health Food Supplies Pty Ltd v Aussia Australia Pty Ltd

Bargain Health Food Supplies Pty Ltd (the opponent) opposed the application by Aussia Australia Pty Ltd (the applicant) for registration of a trade mark. The opposition was based on two grounds under the *Trade Marks Act 1995* (Cth): that the proposed trade mark was inherently likely to deceive or cause confusion under section 43, and that it was substantially identical with, or deceptively similar to, a registered trade mark owned by the opponent for similar goods under section 44.

The primary legal issue before the Hearing Officer was whether the applicant's proposed trade mark met the criteria for rejection under section 44(1)(a) of the Act. This required determining if the applicant's trade mark was either substantially identical with, or deceptively similar to, the opponent's registered trade mark, considering the relevant goods and priority dates. The court also considered the ground of opposition under section 43, which concerns the likelihood of deception or confusion.

In assessing the section 44 ground, the Hearing Officer noted that the opponent's registration predated the application's priority date and that the goods were of the same description, satisfying preliminary requirements. The core of the analysis focused on whether the marks were "substantially identical" or "deceptively similar." Applying the test from *Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd*, which involves comparing marks side-by-side and assessing their essential features and overall impression, the Hearing Officer found no substantial identity. Furthermore, regarding deceptive similarity, defined in section 10 of the Act as a mark that "nearly resembles" another to the point of being "likely to deceive or cause confusion," the Hearing Officer found nothing in the trade mark itself to suggest such a likelihood. Consequently, both grounds of opposition were dismissed.

The Hearing Officer directed that the applicant's application be registered, subject to payment of the sealing fee, one month from the decision date, with provisions for stay in the event of an appeal. The opponent was ordered to pay the applicant's costs.