CytoSport, Inc v Body Ripped Sports Nutrition Pty Ltd [Sec=Unclassified]

This matter concerned an opposition by CytoSport, Inc. (the opponent) to a trade mark application by Body Ripped Sports Nutrition Pty Ltd (the applicant) for the mark MUSCLE MILK. The opposition was heard by Claudia Murray, a Hearing Officer for Trade Marks.

The primary legal issues before the Hearing Officer were whether to allow an amendment to the opponent's notice of opposition under section 66 of the *Trade Marks Act 1995* (Cth), and, if so, whether the opponent had established grounds for opposition under sections 60 and 58 of the Act. The opponent sought to rely on evidence it had already filed to argue the section 58 ground, asserting that this did not prejudice the applicant.

The Hearing Officer determined that it was fair and reasonable to allow the amendment to the notice of opposition under section 66(b), as the applicant would not be prejudiced and it was preferable for the opposition to be considered on relevant grounds. Applying the balance of probabilities standard of proof, the Hearing Officer found that the opponent had successfully established its case for ownership of the trade mark under section 58.

Consequently, the Hearing Officer refused to register the trade mark application. In relation to costs, the Hearing Officer noted that while costs usually follow the event, the opponent had succeeded on a ground raised late in the proceedings, causing inconvenience to the applicant. Therefore, each party was ordered to bear its own costs.