Cosmetic, Toiletry and Fragrances Association Foundation v Fanni Barns Pty Ltd

This decision concerns an opposition by The Cosmetic, Toiletry and Fragrance Association Foundation (the opponent) to the trade mark application 852238, filed by Fanni Barns Pty Ltd (the applicant), for the mark LOOK GOOD + FEEL GOOD = ROOT GOOD. The application was filed in classes 3 and 25, covering cosmetics, sexual hygiene products, and clothing. The opponent, an American association, relied on its registered trade marks, which include the words LOOK GOOD ... FEEL BETTER, used in Australia in connection with a community service program for cancer patients. The applicant did not participate in the opposition proceedings.

The delegate was required to determine several grounds of opposition. These included whether the applicant lacked the intention to use or authorise the use of the opposed trade mark at the time of filing, whether the trade mark was capable of distinguishing the applicant's goods under section 41 of the *Trade Marks Act 1995*, whether it contained scandalous matter under section 42(a), whether its use would be contrary to law under section 42(b), and whether its registration was prevented by sections 44 and 60 due to deceptive similarity with the opponent's registered marks.

The delegate rejected the ground concerning lack of intention to use, finding that the opponent had not discharged its onus to demonstrate this, and the applicant's silence did not amount to an admission. The delegate also found that the opposed trade mark was capable of distinguishing the applicant's goods, applying principles from *Mark Foy's Ltd v Davies Coop & Co Ltd* to conclude that the mark was more likely to be emotive advertising than descriptive. The ground of scandalous matter was also dismissed, with the delegate finding that while the mark might be crude, it did not reach the threshold of causing significant shock or outrage in ordinary circumstances. The ground under section 42(b) was rejected due to a lack of evidence of illegality. Finally, the delegate found that the opposed trade mark was not deceptively similar to the opponent's marks, noting that the inclusion of "ROOT GOOD" significantly altered the overall impression and that the opponent's registered mark in class 41 was not for closely related goods.

Consequently, no grounds of opposition were established, and the application was permitted to proceed to registration, subject to the usual fees and the possibility of an appeal. The applicant was not awarded costs due to its non-participation.