David Freeman and Goodness Plus Pty Ltd v Société des Produits Nestlé S.A

[2024] ATMO 50

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re:Opposition by David Freeman and Goodness Plus Pty Ltd to registration of trade mark application number 2139564 (classes 5, 29, 30 and 32) – FOR THE SAKE OF GOODNESS - in the name of Société des Produits Nestlé S.A.

Delegate:

Timothy Brown

Representation:

Opponents: David Freeman.

Applicant: None.

Decision:

2024 ATMO 50

Trade Marks Act 1995 (Cth) – opposition under section 52 – s 44 considered – s 44 partially established – opportunity to amend – application amended – trade mark to proceed to registration.

Background

1. This decision concerns an opposition brought by David Freeman and Goodness Plus Pty Ltd (‘Opponents’) under section 52 of the Trade Marks Act 1995 (Cth)[1] to the registration of the following trade mark:

   [1] Unless stated otherwise, each reference to a section or regulation is a reference to the Trade Marks Act 1995 (Cth) (‘Act’) or Trade Marks Regulations 1995 (Cth) (‘Regulations’).

   Trade Mark Number:     2139564

   Trade Mark:   FOR THE SAKE OF GOODNESS (‘Trade Mark’)

Owner:                Société des Produits Nestlé S.A. (‘Applicant’)

Priority Date:  30 November 2020

Specification:  See Annexure A (‘Applicant’s Goods’)

1. The Trade Mark was examined under section 33, then subsequently accepted, and advertised for opposition on 9 November 2021.

2. On 4 January 2022, the Opponents filed a Notice of Intention to Oppose registration of the Trade Mark. The Opponents subsequently filed a Statement of Grounds and Particulars (‘SGP’) on 3 February 2022. The Applicant filed a Notice of Intention to Defend the opposition on 14 April 2022.

3. The Opponents filed Evidence in Support of the opposition on 18 July 2022. The Applicant did not file Evidence in Answer.

4. Following the end of the period for evidence, the Opponents requested to be heard by way of written submissions. The Opponents filed written submissions on 23 November 2023. No written submissions were filed by the Applicant. The matter was subsequently allocated to me to decide, as a Delegate of the Registrar of Trade Marks.

Grounds, Onus and Relevant Date

1. The nominated ground of opposition is section 44.

2. The Opponents bear the onus of establishing the ground of opposition.[2] The required standard of proof is on the balance of probabilities.[3] The date at which the rights of the parties will be determined is the priority date of the Trade Mark, 30 November 2020 (‘Relevant Date’).

   [2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] ((Keane CJ, Stone and Jagot JJ).

   [3] Pfizer Products Inc v Karam (2006) FCA 1663, [6]-[26] (Gyles J); Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

Preliminary Matter

1. Both the Opponents’ evidence and submissions refer to sections 43 and 60. Neither ground of opposition was nominated in the SGP, nor have the Opponents filed a request to amend its SGP under regulation 5.12 to include those grounds in the opposition. Accordingly, I have disregarded the aspects of the Opponents’ evidence and submissions that pertain to either sections 43 or 60.

Evidence

1. The Opponents’ evidence consists of a declaration made by David Freeman, Director of Goodness Plus Pty Ltd, on 17 July 2022 (‘Freeman’).

2. Mr Freeman declares that he developed a range of fruit and vegetable juice drinks made from freeze dried fruit and vegetable products under the brand FOR GOODNESS SAKE. Freeman includes the following examples demonstrating use of this trade mark by the company Goodness Plus Pty Ltd (‘Goodness Plus’) in connection with juice products:

1. In addition to juice drinks, Mr Freeman declares that FOR GOODNESS SAKE is used by Goodness Plus in connection with a range of other products, namely deconstructed snack bars and dried fruit and nut products designed as breakfast toppers.

2. Goodness Plus is the owner of the following trade mark registration:

   Trade mark number: 1888974

Trade mark:  FOR GOODNESS SAKE (‘Earlier Trade Mark’)

Priority date:  22 November 2017

Owner:  Goodness Plus Pty Ltd

Specification:  See: Annexure B (‘Earlier Trade Mark’s Goods’)

1. Freeman also includes various examples demonstrating use of Trade Mark by the Applicant. These examples are sourced from the Applicant’s Facebook webpage, the Applicant’s social media accounts on YouTube and Twitter, and in store photographs from Coles Supermarkets. Several examples are reproduced below:

Section 44

1. Section 44 relevantly provides:

   (1)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant's trade mark) in respect of goods (applicant's goods) must be rejected if:

   (a)the applicant's trade mark is substantially identical with, or deceptively similar to:

   (i)a trade mark registered by another person in respect of similar goods or closely related services; or

(ii)a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and

(b)the priority date for the registration of the applicant's trade mark in respect of the applicant's goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.

1. To succeed under this ground of opposition the Opponents must establish that the Trade Mark is substantially identical with, or deceptively similar to, another trade mark with an earlier priority date, in the name of person other than the Applicant, in respect of goods that are similar to the Applicant’s Goods, or services that are closely related to the Applicant’s Goods.

2. The Opponents rely on the Earlier Trade Mark as the basis for the section 44 ground of opposition.

3. The Earlier Trade Mark has an earlier priority date than the Trade Mark and is held in the name of another person.

Comparison of Goods

1. Section 14 provides:

   (1)  For the purposes of this Act, goods are similar to other goods:

   (a)  if they are the same as the other goods; or

   (b)  if they are of the same description as that of the other goods.

2. Whether goods are of the same description depends on ‘whether the goods belong to the same of different trades’[4]. This is determined through consideration of the nature of the goods,[5] the purpose for which the goods will be used,[6] and the trade channels through which the goods are bought and sold.[7] In Reckitt and Colman (Australia Limited v Boden, Dixon J stated:

   What forms the same description of goods must be discovered from a consideration of the course of trade or business. One factor is the use to which the two sets of goods are put.  Another is whether they are commonly dealt with in the same course of trade or business.[8]

   [4] Re an Application by Ladislas Jellinek for the Registration of a Trade Mark (1947) 63 RPC 59, 64 (Romer J).

   [5] Ibid.

   [6] Ibid.

   [7] Ibid; see also: Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [5] (Kitto J).

   [8] (1954) 70 CLR 84, 94.

3. In the SGP, the Opponents stated that both trade marks ‘have been applied for in classes 29 & 32 and both list very similar, if not the same types of products within the two categories’.

4. I accept that all of the Applicant’s Goods in Class 29 are the same as, or similar to, those specified in Class 29 of the Earlier Trade Mark. The Earlier Trade Mark’s Goods include, amongst other things, ‘drinks made from dairy products’, ‘food products made from dried fruits’, ‘fruits (processed)’, ‘vegetables, dried’, ‘snack foods made from dried vegetables’, ‘processed cheese products’, and ‘yoghurt products’. These goods are the same, or include within their description, goods that are the same as all of the vegetable, diary, fruit, milk substitute, oil and fat products specified in Class 29 of the Applicant’s Goods.

5. The Applicant’s goods in Class 29 also include a variety of meat and protein products, namely ‘meat, poultry, game, fish and seafood’, ‘sausages’, ‘egg derived food bars’ and ‘charcuterie’. Meat-based products generally derive from different trades sources than vegetable, nut and fruit based products. However, the within the scope of the broad descriptions of the vegetable, fruit and nut based products specified in the Earlier Trade Mark’s Goods are various plant and vegetable substitutes for many goods that would fall within the Applicant’s broad claim for ‘meat, poultry, game, fish and seafood’. For example, products such as vegetable or plant-based jerkies, dehydrated meat substitutes, plant-based sausages and textured vegetable proteins are designed as alternatives to their meat based counterparts, and are similar in nature and purpose to those products. In my view, if similar trade marks were used on these goods, there is likely to be a real and tangible danger of confusion. Accordingly, I am satisfied that all the Applicant’s Goods in Class 29 are similar to the Earlier Trade Mark’s Goods in Class 29.

6. In regard to the Applicant’s Goods in Class 30, I note that the Applicant’s Goods contain various claims for coffee, coffee products, tea, tea products, confectionary, chocolate products, cereal based products and preparations, frozen desserts and yoghurts, and products described as ‘snack foods’ and ‘food bars’. I consider all these goods to be similar to the goods specified in Class 29 of the Earlier Trade Mark’s Goods. The Earlier Trade Mark’s claim for ‘drinks made from dairy products’ and ‘beverages made from yoghurt’ includes beverages similar in nature to those that would fall within the description of tea and coffee products, such as coffee or tea flavoured milk beverages. Similarly, I consider the Earlier Trade Mark’s claims for various fruit, dairy and vegetable based snacks and snack products, including ‘fruit chips’ and ‘crystallised fruit’ to be similar to the Applicant’s claims for various snack foods, food bars, confectionery and chocolate products. As with some of the previously discussed claims, the Earlier Trade Mark’s Goods essentially include plant and dairy based versions of the Applicant’s snack bars and confectionery. Lastly, I note that the Applicant’s various claims for frozen yoghurt products are goods of the same description to the Earlier Trade Mark’s claims for ‘yoghurt products’ in Class 29.

7. The Applicant’s Goods in Class 32 include beer, various water based beverages, fruit and vegetable beverages, syrups, extracts and essences for making non-alcoholic beverages, sports beverages, and various cereal based beverages. I consider the majority of these beverages to be the same or similar to the Earlier Trade Mark’s ‘Concentrates for use in the preparation of fruit juice drinks’, ‘Fruit based drinks’, ‘Fruit flavoured non-alcoholic drinks’, ‘Vegetable drinks’, ‘Vegetable extracts for use in the preparation of non-alcoholic drinks’ and ‘drinks made from dairy products’. The sole exception is the Applicant’s claim for ‘beer’. Beer, both alcoholic and non-alcoholic, is a beverage with a manner of manufacture, trade sources, and trade channels distinct from the beverages previously mentioned. In lieu of any evidence from the Opponents to support the contention that beer and the Earlier Trade Mark’s beverages are similar, I am satisfied that beer is not similar to any of the beverages specified in Class 32 of the Applicant’s Goods.

8. Turning to the remainder of the Applicant’s Goods in Class 5, I note that these goods can be generally characterised as pharmaceuticals, veterinary preparations, sanitary preparations, vitamins and minerals, infant food, dietetic supplements, protein supplements, and medicated confectionery. In my view the broad claims in Earlier Trade Mark’s Goods in Class 29 would include various fruit and vegetable food products made or otherwise designed for infants or children. These products are the same as, or similar to, the Applicant’s claim for ‘infant food’. The Earlier Trade Mark’s Goods also include various dairy, milk, and yoghurt beverages in Class 29, as well as vegetable and fruit beverages in Class 32. Within the description of these goods are dairy based protein beverages or dairy based beverages fortified or enriched with protein supplements. I consider these goods to be similar to the Applicant’s protein and dietetic supplements in Class 5 with the primary purpose of the goods being to supplement the consumption of protein.[9] Similarly, the Earlier Trade Mark’s beverages in Class 32 would include fruit and vegetable beverages fortified with minerals and dietary supplements. I consider these goods to be similar to the Applicant’s claims for various vitamin, mineral and dietetic supplements in Class 5. These goods, both enriched or not, are often manufactured by the same traders and sold via the same trade channels. For completeness, I do not consider the Applicant’s claims for pharmaceutical, veterinary and sanitary goods to be similar to any of the Earlier Trade Mark’s Goods. They differ in nature and purpose to all of the Earlier Trade Mark’s food and beverage products in Classes 29 and 32.

   [9] See: Australasian Conference Association Limited v Target Brands, Inc [2023[ ATMO 154, [29] (Delegate Berger).

9. I will now consider whether the Trade Mark is substantially identical or deceptively similar to the Earlier Trade Mark.

Comparison of Trade Marks

1. For reference, the trade marks under comparison are reproduced below:

Trade Mark	Earlier Trade Mark
FOR THE SAKE OF GOODNESS	FOR GOODNESS SAKE

1. In the SGP, the Opponents contended that the Earlier Trade Mark is effectively identical to the Trade Mark.

2. Whether two trade marks are substantially identical is determined by a side by side comparison having regard to the essential features of the trade marks and the total impression of resemblance or dissimilarity that emergers from the comparison.[10] In my view, the trade marks are not substantially identical. Although the trade mark share the same words as essential features, when considered side by side the different arrangement of the words is readily apparent and sufficient to differentiate the trade marks. There is not an overall impression of resemblance between the trade marks.

   [10] Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1963] HCA 66, [12] (Windeyer J).

3. Turning to whether the trade marks are deceptively similar. Section 10 defines ‘deceptive similarity’ in the following terms:

   For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.

1. The approach for assessing whether trade marks are deceptively similar was outlined by Windeyer J in Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd:

   The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's [mark].[11]

   [11] [1963] HCA 66, [13].

2. The basis for any deception or confusion is the impression or recollection of the trade marks that is carried away and retained by the ordinary consumer.[12] Accordingly, an allowance is made for imperfect recollection of the trade marks.[13] The impression comes from the trade marks in their entirety,[14] and is informed by the look, sound and ideas conveyed by the trade marks.[15]

   [12] Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641, 658 (Dixon and McTiernan JJ).

   [13] Crazy Ron's Communications Pty Ltd v Mobileworld Pty Ltd [2004] FCAFC 196, [77] (Moore, Sackville, and Emmett JJ).

   [14] Clarke v Sharp (1898) 15 RPC 141, 146 (Byrne J).

   [15] Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd (1952) 86 CLR 536, 538 (Dixon, Williams and Kitto JJ).

3. For trade marks to be considered deceptively similar there must be a real and tangible danger of deception or confusion occurring.[16] This will be the case where there is a real likelihood that an ordinary person would be caused to wonder whether the services come from the same trade source.[17]

   [16] Southern Cross Refrigerating v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J); Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020, [50] (French J).

   [17] Ibid.

4. The trade marks are largely comprised of the same elements. The difference being that the Earlier Trade Mark ends with the words, ‘Goodness Sake’, while the Trade Mark ends with the words, ‘the Sake of Goodness’. The Opponents submits that different order of the words is not sufficient to change the identity of the trade marks or alter the similar meaning of the respective phrases.

5. I agree with the Opponents’ submission. Despite the different order of the words, the trade marks are conceptually the same. Reversing the order of the final two words and adding the article, ‘the’, and preposition, ‘of’, does not alter the meaning of the phrase in any manner that would avoid the prospect of confusion.

6. Visually and aurally the trade marks are also similar. The trade marks both begin with the same word, ‘For’, and are followed, respectively, by the words ‘Goodness Sake’ and ‘the Sake of Goodness’. Neither the different arrangement of the words ‘Goodness’ and ‘Sake’, nor the addition of ‘the’ or ‘of’ introduce any meaningful visual or aural differences to the trade marks.

7. The differences between the trade marks are also less conspicuous when considered in the context of the trade marks as a whole. This is largely due to the words ‘Goodness’ and ‘Sake’ being incorporated within phrases that commence with the same word, but also due to both trade marks essentially conveying the same meaning. In my view, as a whole the trade marks convey very similar impressions. A person with an imperfect recollection of the Earlier Trade Mark may be caused to wonder if similar goods bearing the Trade Mark derive from the same trade source.

8. For these reasons I am satisfied that there would be a tangible danger of confusion between the Trade Mark and the Earlier Trade Mark.

9. The section 44 ground of opposition is established in relation to the following goods:

   Class 5: dietetic foods and substances adapted for medical and clinical use; food and food substances for babies, infants and invalids; foods and food substances for nursing mothers adapted for medical use; nutritional and dietary supplements; vitamin preparations, mineral food preparations; medicated confectionery; protein preparations for human food, being protein supplements for humans and protein preparations for use as additives to foodstuffs for human consumption (adapted for medical purposes)

   Class 29: Vegetables and potatoes (preserved, dried or cooked), fruits (preserved, dried or cooked), mushrooms (preserved, dried or cooked), meat, poultry, game, fish and seafood, all these products also in the form of extracts, soups, jellies, pastes, preserves, ready-made dishes, frozen or dehydrated; jams; eggs; milk, cream, butter, cheese and other food preparations having a base of milk; milk substitutes; milk-based beverages; milk-based and cream-based desserts; yoghurts; soya milk (milk substitute), soya-based preparations; edible oils and fats; protein preparations for human food, being dairy protein products and protein-enriched food products being vegetables, meat, poultry or fish; non-dairy creamers; sausages; charcuterie; peanut butter; soups, soup concentrates, broth, stock cubes, bouillon, consommes; fruit-based snack foods; vegetable-based snack foods; nut-based snack foods; ready to eat food bars being ready to eat fruit derived food bars, nut derived food bars, vegetable derived food bars, egg derived food bars, milk derived food bars

   Class 30: Coffee, coffee extracts, coffee-based preparations and beverages; iced coffee; coffee substitutes, extracts of coffee substitutes, preparations and beverages based on coffee substitutes; chicory; tea, tea extracts, tea-based preparations and beverages; iced tea; malt-based preparations; cocoa and cocoa-based preparations and beverages; chocolate, chocolate products, chocolate-based preparations and beverages; confectionery, sweets, candies; sugar; bakery products; biscuits, cakes, cookies, wafers, toffees, puddings; ice cream, water ices, sherbets, frozen confections, frozen cakes, soft ices, frozen desserts, frozen yoghurts; breakfast cereals, muesli, corn flakes, cereal bars, ready-to-eat cereals; cereal preparations; noodles; foodstuffs having a base of rice, of flour or of cereals, also in the form of ready-made dishes;  preparations made from cereals; oats and preparations made from oats; cereal-based snack foods, rice-based snack foods, wheat-based snack foods, muesli-based snack foods; muesli bars; ready to eat food bars being ready to eat cereal derived food bars, muesli derived food bars, grain derived food bars, rice derived food bars, chocolate derived food bars; confectionery, sweets; bakery products; protein preparations for human food, being high-protein cereal bars

   Class 32: still water, effervescent water or carbonated water, processed water, spring water, mineral water, flavoured water; fruit-flavoured and fruit-based beverages, fruit and vegetable juices, nectars, lemonades, sodas and other non-alcoholic beverages; syrups, extracts and essences and other preparations for making non-alcoholic beverages; lactic fermented beverages; soya-based beverages; oat-based beverages, malt-based beverages; isotonic beverages; protein preparations for human food, being protein-enriched sports beverages

Decision

1. Section 55(1) of the Act relevantly provides:

   Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

   (a)  to refuse to register the trade mark; or

   (b)  to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

   having regard to the extent (if any) to which any ground on which the application was opposed has been established.      

2. The Opponents have established a ground of opposition under section 44 in respect of some of the Applicant’s Goods. Accordingly, I wrote to the Applicant on 6 March 2024 advising the Applicant that I intended to refuse to register the Trade Mark unless the Applicant agreed to amend the Applicant’s Goods to the following:

   Class 5: Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes

   Class 30: chewing gum; natural sweeteners; bread, yeast, pastry; binding agents for making ice cream and/or water ices and/or sherbets and/or frozen confections and/or frozen cakes and/or soft ices and/or frozen desserts and/or frozen yoghurts; honey and honey substitutes; rice, pasta; pizzas; sandwiches; mixtures of alimentary paste and oven-ready prepared dough; sauces; soya sauce; ketchup; aromatising or seasoning products for food, edible spices, condiments, salad dressings, mayonnaise; mustard; vinegar

   Class 32: Beers

1. On 15 March 2024 the Applicant agree to amend the Applicant’s Goods.

2. Accordingly, trade mark number 2139564 may proceed to registration one month from the date of this decision. Should the Registrar be served with a notice of appeal before the registration of the Trade Mark, I direct that the registration of the Trade Mark not occur until the appeal has been decided or discontinued, and that any disposition of the application be in accordance with the Court’s orders or direction.

Costs

1. Both parties sought an award of costs. As both parties have been successful to some degree, I decline to make an award of costs.

Timothy Brown

Hearing Officer

Delegate of the Registrar of Trade Marks

18 March 2024

Annexure A

Class 5: Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic foods and substances adapted for medical and clinical use; food and food substances for babies, infants and invalids; foods and food substances for nursing mothers adapted for medical use; nutritional and dietary supplements; vitamin preparations, mineral food preparations; medicated confectionery; protein preparations for human food, being protein supplements for humans and protein preparations for use as additives to foodstuffs for human consumption (adapted for medical purposes)

Class 29: Vegetables and potatoes (preserved, dried or cooked), fruits (preserved, dried or cooked), mushrooms (preserved, dried or cooked), meat, poultry, game, fish and seafood, all these products also in the form of extracts, soups, jellies, pastes, preserves, ready-made dishes, frozen or dehydrated; jams; eggs; milk, cream, butter, cheese and other food preparations having a base of milk; milk substitutes; milk-based beverages; milk-based and cream-based desserts; yoghurts; soya milk (milk substitute), soya-based preparations; edible oils and fats; protein preparations for human food, being dairy protein products and protein-enriched food products being vegetables, meat, poultry or fish; non-dairy creamers; sausages; charcuterie; peanut butter; soups, soup concentrates, broth, stock cubes, bouillon, consommes; fruit-based snack foods; vegetable-based snack foods; nut-based snack foods; ready to eat food bars being ready to eat fruit derived food bars, nut derived food bars, vegetable derived food bars, egg derived food bars, milk derived food bars

Class 30: Coffee, coffee extracts, coffee-based preparations and beverages; iced coffee; coffee substitutes, extracts of coffee substitutes, preparations and beverages based on coffee substitutes; chicory; tea, tea extracts, tea-based preparations and beverages; iced tea; malt-based preparations; cocoa and cocoa-based preparations and beverages; chocolate, chocolate products, chocolate-based preparations and beverages; confectionery, sweets, candies; sugar; chewing gum; natural sweeteners; bakery products, bread, yeast, pastry; biscuits, cakes, cookies, wafers, toffees, puddings; ice cream, water ices, sherbets, frozen confections, frozen cakes, soft ices, frozen desserts, frozen yoghurts; binding agents for making ice cream and/or water ices and/or sherbets and/or frozen confections and/or frozen cakes and/or soft ices and/or frozen desserts and/or frozen yoghurts; honey and honey substitutes; breakfast cereals, muesli, corn flakes, cereal bars, ready-to-eat cereals; cereal preparations; rice, pasta, noodles; foodstuffs having a base of rice, of flour or of cereals, also in the form of ready-made dishes; pizzas; sandwiches; mixtures of alimentary paste and oven-ready prepared dough; preparations made from cereals; oats and preparations made from oats; cereal-based snack foods, rice-based snack foods, wheat-based snack foods, muesli-based snack foods; muesli bars; ready to eat food bars being ready to eat cereal derived food bars, muesli derived food bars, grain derived food bars, rice derived food bars, chocolate derived food bars; confectionery, sweets; bakery products; sauces; soya sauce; ketchup; aromatising or seasoning products for food, edible spices, condiments, salad dressings, mayonnaise; mustard; vinegar; protein preparations for human food, being high-protein cereal bars

Class 32: Beers; still water, effervescent water or carbonated water, processed water, spring water, mineral water, flavoured water; fruit-flavoured and fruit-based beverages, fruit and vegetable juices, nectars, lemonades, sodas and other non-alcoholic beverages; syrups, extracts and essences and other preparations for making non-alcoholic beverages; lactic fermented beverages; soya-based beverages; oat-based beverages, malt-based beverages; isotonic beverages; protein preparations for human food, being protein-enriched sports beverages

(‘Applicant’s Goods’)

Annexure B

Class 29: Drinks based predominantly on milk; Drinks flavoured with fruit pastes and having a milk base; Drinks flavoured with herbs and having a base of milk; Drinks flavoured with spices and having a base of milk; Drinks made from dairy products; Drinks made wholly or principally with milk; Flavoured milk powder for making drinks; Milk based drinks (milk predominating); Milk drinks; Yoghurt based drinks; Yoghurt drinks; Crystallised fruits; Crystallized fruits; Dried fruit; Dried fruit products; Food products made from dried fruits; Food products made from preserved fruits; Fruit based dairy products; Fruit based snack food; Fruit chips; Fruit concentrates; Fruit flavoured beverages having a milk base; Fruit flavoured yoghurts; Fruit-based snack foods; Fruits (processed); Fruits, dried; Fruits, preserved; Mixed fruit; Mixtures of fruit and nuts; Mixtures of nuts and dried fruits; Preparations comprising fruits with cream; Prepared foods consisting principally of fruits; Prepared fruits; Prepared snacks made from dried fruit; Prepared snacks made from fresh fruit; Preserved fruits; Tropical fruits (dried); Tropical fruits (preserved); Root vegetables (dried); Vegetables, dried; Dried vegetables; Food products made from dried vegetables; Freeze-dried vegetables; Prepared snacks made from dried vegetables; Snack foods made from dried vegetables; Cheese mixtures; Combinations of cheese and fruit; Combinations of cheese and vegetables; Prepared foods consisting principally of cheese; Processed cheese products; Beverages made from yoghurt; Preparations made from yoghurt; Yoghurt beverages; Yoghurt for drinking; Yoghurt made from goats milk; Yoghurt powder; Yoghurt preparations; Yoghurt products

Class 32: Concentrates for use in the preparation of fruit juice drinks; Fruit based drinks; Fruit drinks; Fruit flavoured non-alcoholic drinks; Vegetable drinks; Vegetable extracts for use in the preparation of non-alcoholic drinks; Beverages consisting of a blend of fruit and vegetable juices; Fresh fruit juices; Fruit beverages; Fruit concentrates for making beverages; Fruit juice beverages

(‘Earlier Trade Mark’s Goods’)