Conga Foods Pty Ltd v Cobram Estate Pty Ltd

Conga Foods Pty Ltd (the Opponent) opposed the registration of a trade mark by Cobram Estate Pty Ltd (the Applicant) under section 52 of the *Trade Marks Act 1995* (Cth). The grounds of opposition relied upon by the Opponent were under sections 42(b), 43, and 62A of the Act. The matter was heard by Benjamin Goldsworthy, Hearing Officer.

The legal issues before the Hearing Officer were whether the Applicant's trade mark should be refused registration based on the grounds of opposition raised by the Opponent. Specifically, the Hearing Officer had to determine if the use of the trade mark was likely to deceive or cause confusion due to any connotation it possessed (section 43), or if it was otherwise deceptive or confusing (sections 42(b) and 62A).

The Hearing Officer considered the evidence regarding the nature of Extra Virgin Olive Oil (EVOO) and the market position of the parties. The Opponent argued that the Applicant's trade mark had a connotation that would deceive or confuse consumers. However, the Hearing Officer applied the principles established in cases such as *McCorquodale v Masterson* and *Pfizer Products Inc v Karam*, which define "connotation" as a secondary meaning implied by the mark beyond its primary denotation as a badge of origin. The Hearing Officer found that the Opponent had not established that the trade mark, in relation to the goods, had a connotation that would be likely to deceive or cause confusion, nor had the other grounds of opposition been established.

Ultimately, the Hearing Officer was not satisfied that any of the grounds of opposition had been established and therefore decided that the trade mark could proceed to registration. The Hearing Officer awarded costs against the Opponent.