Grape Co Australia Pty Ltd v Grapeco Pty Ltd

Grape Co Australia Pty Ltd (the Applicant) sought to register a trade mark, while Grapeco Pty Ltd (the Opponent) opposed this application. The dispute concerned whether the Applicant's proposed trade mark should be registered, given its similarity to the Opponent's existing trade mark and the goods for which it would be used. The decision was made by Nicholas Smith, Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the court was whether the Applicant's proposed trade mark was likely to deceive or cause confusion, pursuant to section 60 of the *Trade Marks Act 1995* (Cth). This required the court to consider the similarity of the trade marks, the identity of the goods, the nature of the consumers, and the reputation of the Opponent's existing mark.

The Hearing Officer found that the trade marks were similar, both containing the word "Grapeco," and were intended for identical goods, namely grapes and other fruit. The court reasoned that the average consumer would likely focus on the word "GrapeCo" as the essential feature of both marks, discounting any stylisation or descriptive elements. Given the fast-moving consumer nature of the goods and the direct competition between the parties, the court concluded that consumers familiar with the Opponent's "GRAPECO AUSTRALIA" mark would likely be caused to wonder if goods bearing the Applicant's mark originated from the same source or were marketed under licence. Consequently, the ground of opposition under section 60 was established.

The Hearing Officer refused to register the Applicant's trade mark and ordered that the refusal be recorded one month from the date of the decision, unless a notice of appeal was filed. The Opponent was awarded costs against the Applicant.