Good Health Products Pty Ltd v Henry Ostrowski-Meissner

Good Health Products Pty Ltd (the opponent) opposed the application by Henry Ostrowski-Meissner (the applicant) to register the trade mark BIO-LIFE in classes 5, 29, 30, and 32. The opposition was heard by a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the opposition succeeded on the grounds of sections 58 and 60 of the *Trade Marks Act 1995* (Cth). The opponent also raised other grounds, but the delegate found that the evidence provided did not properly address these, and therefore a prima facie case was not established for those grounds.

In relation to section 58, the delegate considered whether the applicant was the owner of the trade mark. This required the opponent to demonstrate that the marks were identical or substantially identical, the goods were of the "same kind of thing," and the opponent had the earliest claim to ownership based on use in Australia. While the marks were identical, the delegate found the opponent's evidence regarding the geographical location of sales and advertising to be unclear, thus limiting its weight. The delegate accepted that the opponent had demonstrated prior use in relation to lanolin-based skin cream, but concluded that the applicant's goods in the specified classes were not of the "same kind of thing" as this specific product, and therefore the opposition failed under section 58. For section 60, the delegate found that while the marks were substantially identical, the opponent had not sufficiently established that its trade mark had acquired a reputation in Australia by the application date (9 March 1998) such that the use of the applicant's mark would be likely to deceive or cause confusion.

The opposition was dismissed, and the application was directed to proceed to registration. No order was made as to costs.