Energy Beverages LLC v M.D Visage Pty Ltd

Energy Beverages LLC (the Applicant) sought to register a trade mark for a range of beverages and associated goods. M.D. Visage Pty Ltd (the Opponent) opposed this application based on its registered trade marks, also covering a wide array of beverages, nutritional supplements, and related products. The matter came before Katrina Brown, acting as the decision-maker.

The central legal issue before the court was whether the goods for which the Applicant sought registration were the same as, or of the same description as, the goods covered by the Opponent's registered trade marks, such that registration should be refused. This involved an assessment of the scope of both the Applicant's proposed mark and the Opponent's existing registrations, particularly concerning beverages, nutritional supplements, and preparations for making drinks.

The decision-maker found that the Opponent's trade marks, registered in class 32, broadly covered all beverages, as well as concentrates, syrups, powders, and preparations for making beverages. The Applicant's goods in class 32 were clearly the same as, or of the same description as, the Opponent's registered goods. Furthermore, the decision-maker considered that the Opponent's claims for energy drinks, including double-caffeine drinks in class 32, were of the same description as the Applicant's claims in class 30 for beverages containing caffeine. The decision-maker also noted that the Opponent's broad claims for beverage preparations in class 32 could be of the same description as some of the preparations claimed by the Applicant in classes 5, 29, and 30. Applying established authorities, the decision-maker held that it was for the Applicant to establish a principled basis to differentiate its goods, and in the absence of any defence from the Applicant, any attempt by the decision-maker to do so would be arbitrary.