Flujo Sanguineo Holdings Pty Ltd v Universal Food Products Pty Ltd

This decision concerns an opposition by Flujo Sanguineo Holdings Pty Ltd (the Opponent) to the registration of a trade mark by Universal Food Products Pty Ltd (the Applicant). The dispute arose from the Applicant's application to register a trade mark, which the Opponent sought to oppose based on its existing Australian trade mark registrations. The proceedings were heard by Debrett Lyons, a Hearing Officer.

The primary legal issues before the Hearing Officer were whether the goods in question were "similar goods" for the purposes of section 44 of the relevant Act, and whether the Applicant's trade mark was "substantially identical or deceptively similar" to the Opponent's registered trade mark, NUTTVIA. The Opponent argued that the marks NUVIA and NUTTVIA were substantially identical due to shared phonetic and visual elements, specifically the initial "NU" and the suffix "VIA".

The Hearing Officer found that the Opponent had not established that the compared marks were substantially identical, noting that they were not identical when compared side-by-side. Regarding deceptive similarity, the Hearing Officer applied the principles from *Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd*, which requires a different comparison than for substantial identity, focusing on whether the marks, when considered in the abstract and not side-by-side, would deceive or cause confusion. The Hearing Officer concluded that the Opponent had not established a ground of opposition.

Consequently, the Hearing Officer decided to allow the Applicant's trade mark to proceed to registration, subject to a one-month period from the decision date, during which registration would be stayed if a notice of appeal was filed. The Hearing Officer also awarded costs against the Opponent in favour of the Applicant.