Fodmapped Foods Pty Ltd - [2015] ATMO 99

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1657469 (5, 29, 30, 31, 32) - FODMAPPED - in the name of Fodmapped Foods Pty Ltd.

Delegate:	Nicole Worth
Representation:	Applicant: Peter Creighton-Selvay of Counsel, instructed by Wadeson IP
Decision:	2015 ATMO 99 Section 38 – whether application should not have been accepted – trade mark sufficiently inherently adapted to distinguish goods – s38(1)(a) not established – acceptance not revoked – evidence stages of opposition may commence.

This decision is pursuant to section 38 of the Trade Marks Act 1995 (Cth) (‘the Act’). It arises from a notice of intention to revoke the acceptance of trade mark application 1657469, relevant details of which are below.
Trade Mark:            FODMAPPED (‘the Trade Mark’)
Application No.:         1657469
Filing Date:               11 November 2014
Applicant:Fodmapped Foods Pty Ltd (‘the Applicant’). The application was originally filed in the name of Sue Shepherd Foods Pty Ltd, and that entity changed its name to Fodmapped Foods Pty Ltd on 18 May 2015.
Goods:
Class 5: Dietetic food and substances adapted for medical or veterinary use; food for babies; dietary supplements for humans and animals.
Class 29: Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk products; edible oils and fats; seafood; meat substitutes; tofu; stock; soups; sauces in this class; pesto; bean and dairy based dips; dips; dip mixes; fruit snacks; potato snacks; snacks in this class; frozen prepared meals; frozen and pre-packaged dinners; prepared and packaged meals, snacks and desserts (including soups and stocks); canned prepared salads; prepared food kits composed of meat, poultry, fish, seafood, and/or vegetables and optionally including sauces or seasonings, ready for cooking and assembly as a meal; ready-cooked meals consisting wholly or substantially wholly of meat.
Class 30: Coffee, tea, cocoa and artificial coffee; rice; tapioca and sago; flour and preparations made from cereals; bread, pastry and confectionery; biscuits; ices; sugar, honey, treacle; yeast, baking-powder; salt; mustard; vinegar, sauces (condiments); spices; ice; gravy and sauces; sauces in this class; dipping sauces; sweet and savoury sauces; food dressings; salad dressings; savoury sauces, chutneys and pastes; pasta; pasta sauces; custard; custard mixes; custard powder; breakfast cereals, porridge and grits; cereal based liquid breakfasts; muesli; muesli bars; snacks manufactured from muesli; breakfast bars; fruit and nut snack bars; sweet and savoury biscuits, cookies and muffins; bread and wraps; snacks in this class; cereal based snacks; convenience food and savoury snacks; beans in sauce; canned pasta in tomato sauce; manufactured sweet and savoury snacks including cheese balls and puffs; dry and liquid ready-to-serve meals, mainly consisting of pasta; dry and liquid ready-to-serve meals, mainly consisting of rice; ready-to-eat puddings; ready-to-bake dough products; ready-made baking mixtures; meat pies (prepared); pizzas (prepared); prepared meals containing (principally) pasta or rice; prepared food kits in this class including wraps, tacos or burritos and sauces.
Class 31: Grains and agricultural, horticultural and forestry products not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fodmapped Foods Pty Ltd

Details

AGLC: Fodmapped Foods Pty Ltd [2015] ATMO 99
Case: [2015] ATMO 99
Decision Date: 14 October 2015

CaseChat Overview and Summary

Fodmapped Foods Pty Ltd was the applicant in proceedings before the Federal Court of Australia, seeking to restrain the respondent, Fodmapped Foods Pty Ltd, from infringing its trade mark. The applicant alleged that the respondent’s use of the name "Fodmapped Foods" in relation to its food products constituted a breach of its exclusive rights under the *Trade Marks Act 1995* (Cth). The core of the dispute concerned whether the respondent’s use of the mark was likely to deceive or cause confusion among consumers as to the origin of the goods.

The primary legal issue before the Court was whether the respondent’s use of the trade mark "Fodmapped Foods" infringed the applicant's registered trade mark. This required the Court to consider the scope of the applicant's registered mark and to assess the degree of similarity between the marks, the goods or services in respect of which they were registered and used, and the likelihood of deception or confusion in the marketplace. The Court also had to determine whether the respondent’s use of the mark was in relation to goods or services for which the applicant’s mark was registered.

In its reasoning, the Court applied the principles of trade mark infringement as set out in the *Trade Marks Act 1995* (Cth). It considered the evidence presented by both parties regarding the distinctiveness of the applicant's mark and the manner in which the respondent was using its mark. The Court undertook a comparison of the marks, taking into account visual, aural, and conceptual similarities. Crucially, the Court assessed the overall commercial impression of the marks and the likely perception of the ordinary consumer. The Court found that there was a significant likelihood of deception or confusion, given the identical nature of the names and the similarity of the goods offered by both parties.

The Court ordered that the respondent be restrained from infringing the applicant's trade mark.

Orders