Drool by Dr Chris Brown Pty Ltd v Vetalogica Pty Ltd

Drool by Dr Chris Brown Pty Ltd (the applicant) sought to register a trade mark, application no. 2155852. Vetalogica Pty Ltd (the opponent) opposed this registration. The matter was heard by Bianca Irgang, a Hearing Officer.

The primary legal issue before the Hearing Officer was whether the opponent had established a ground of opposition under section 60 of the *Trade Marks Act 1995* (Cth). This required determining if the opponent's trade mark had acquired a reputation in Australia prior to the applicant's priority date, and if the use of the applicant's trade mark was likely to deceive or cause confusion due to that reputation.

The Hearing Officer applied the principles established in *Registrar of Trade Marks v Woolworths*, which state that confusion is likely if a number of persons are caused to wonder whether the two products or services come from the same source, and that all surrounding circumstances must be considered. The assessment of deceptive similarity is based on the potential use of the mark by the applicant, not just its past use. The Hearing Officer found that the opponent had met the onus of proof regarding the ground of opposition under section 60.

Consequently, the Hearing Officer ordered that the trade mark application no. 2155852 be refused. Costs were awarded against the applicant in accordance with the usual practice.