Bi-Lo Pty Limited v Kellogg Company

This case involved an opposition by Kellogg Company to the registration of the trade mark "BI-LO RICE POPPS" by Bi-Lo Pty Limited for goods in International Class 30. Kellogg Company argued that the proposed mark was likely to cause deception or confusion due to its resemblance to Kellogg's existing trade marks, that its use would be misleading given Kellogg's reputation, that it was disentitled to protection, and that it lacked distinctiveness. The opposition was heard by a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the trade mark "BI-LO RICE POPPS" was substantially identical or deceptively similar to Kellogg Company's registered trade marks, specifically those containing the word "POP" or "POPS", and whether the mark was distinctive. The delegate also considered grounds under section 28 of the Trade Marks Act 1955, relating to deception, confusion, and entitlement to protection.

In reaching a decision, the delegate analysed the marks in light of established legal principles for assessing deceptive similarity, including the consideration of imperfect recollection and the habits of consumers. The delegate found that while the goods were similar, the marks were neither substantially identical nor deceptively similar. This conclusion was based on the finding that the word "POP" or "POPS" functions descriptively in relation to cereal products, as evidenced by the large number of registered marks containing these terms. The delegate also considered the prominent inclusion of "BI-LO", which had a history of registration and use for Bi-Lo Pty Limited's goods, as a distinguishing feature that mitigated against deception or confusion. The delegate further found that the mark was capable of becoming distinctive, satisfying the requirements for Part B registration.

Consequently, the delegate dismissed Kellogg Company's opposition on all grounds and directed that the trade mark "BI-LO RICE POPPS" proceed to registration. The delegate also awarded costs to the applicant, Bi-Lo Pty Limited.