Blue Zones, LLC v System Biologie Deutschland UG (haftungsbeschränkt)

Blue Zones, LLC (the Opponent) opposed the extension of protection for an International Registration Designating Australia (IRDA) filed by System Biologie Deutschland UG (haftungsbeschränkt) (the Holder). The opposition was brought under the *Trade Marks Act 1995* (Cth).

The primary legal issue before the court was whether the Opponent had established grounds for opposition under section 44 of the *Trade Marks Act 1995* (Cth). This section concerns the rejection of an application for registration of a trade mark if it is substantially identical with, or deceptively similar to, an earlier registered or applied-for trade mark for similar or closely related goods or services. The court also considered whether the Holder had demonstrated prior continuous use or honest concurrent use of their trade mark.

The court applied the principles that the Opponent bears the onus of establishing the grounds of opposition on the balance of probabilities, with the relevant date for determining the rights of the parties being 21 December 2020. The court found that the Holder's evidence did not sufficiently demonstrate prior continuous use or honest concurrent use of the trade mark. Consequently, the court determined that a ground of opposition under section 44 had been established in respect of some of the goods and services listed in the IRDA.

As a result, the court indicated its intention to refuse to extend protection to the IRDA unless the Holder agreed to amend the list of goods and services. The court proposed specific amendments to Classes 3, 5, and 42, which, if accepted, would allow for the extension of protection.