Effem Foods Pty Limited v Chocosuisse Union Des Fabricants Suisses De Chocolat

This decision concerns an opposition by Chocosuisse Union Des Fabricants Suisses De Chocolat ("the opponent") to the registration of the trade mark SUISSANDE by Effem Foods Pty Limited ("the applicant") for a range of food products, including confectionery and chocolate. The opposition was heard by a delegate of the Registrar of Trade Marks.

The primary legal issues before the delegate were whether the trade mark SUISSANDE was an invented word under section 24(1)(c) of the *Trade Marks Act 1955* (as the transitional provisions of the *Trade Marks Act 1995* applied), and whether its use would be likely to deceive or cause confusion under section 28(a) of the 1955 Act. The opponent also raised a general ground that the mark was not registrable and argued for the exercise of the Registrar's discretion. The opponent's concerns were specifically directed towards chocolate and chocolate-related goods, and they sought to limit the registration to goods produced in Switzerland.

The delegate considered the opponent's argument that SUISSANDE was not an invented word because it was too close to "SUISSE" (meaning Switzerland or Swiss) and that the ending "ANDE" was trifling. The opponent contended that the mark would be pronounced in a way that strongly suggested a Swiss origin, particularly given Switzerland's reputation for chocolate. However, the delegate found that while the mark might evoke a "fanciful suggestion of Switzerland," it did not have an obvious meaning to the ordinary Australian consumer. The delegate reasoned that the mark, when considered as a whole, was an odd-looking and somewhat difficult-to-pronounce word with no clear meaning, which is consistent with it being an invented word. Furthermore, the delegate was not convinced that the mark was likely to deceive or cause confusion, finding that any suggested connection with Switzerland was remote and required an unlikely degree of suspended judgment from a prospective purchaser.

Accordingly, the delegate dismissed the opposition and awarded costs to the applicant, finding the trade mark to be entirely registrable.