General Mills, Inc v Maria Christofis and Nikitas Christofis

General Mills, Inc. (the applicant) sought to register a trade mark for "Cheerios" in relation to breakfast cereals. The respondents, Maria Christofis and Nikitas Christofis, opposed this application, arguing that the mark was not distinctive and had been used by them in relation to their own breakfast cereal products since 1991. The matter came before the Federal Court of Australia.

The primary legal issues before the Court were whether the trade mark "Cheerios" was capable of distinguishing the applicant's goods from the goods of other persons, and whether the respondents had established prior use of the mark in Australia such that the applicant's registration should be refused. The Court was required to consider the evidence of use and distinctiveness presented by both parties.

Justice Kirov found that the evidence did not establish that the applicant had used the "Cheerios" mark in Australia prior to the respondents' use. Furthermore, the Court determined that the respondents had established prior use of the "Cheerios" mark in relation to their breakfast cereal products. Consequently, the Court held that the applicant's trade mark application should be refused on the grounds of prior use and lack of distinctiveness in the context of the Australian market.