Hip Hop Beverage Corporation v Red Bull GmbH

Hip Hop Beverage Corporation (applicant) sought to register the trade mark "HIP HOP" for use in relation to energy drinks. Red Bull GmbH (opponent) opposed the registration on the grounds that the proposed mark was deceptively similar to its registered trade mark "RED BULL" and that the applicant's mark was likely to deceive or cause confusion. The matter came before Jock McDonagh J in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark "HIP HOP" was deceptively similar to the opponent's registered trade mark "RED BULL" for the purposes of section 44 of the *Trade Marks Act 1995* (Cth). This involved an assessment of whether an ordinary consumer, when encountering the "HIP HOP" mark in relation to energy drinks, would be likely to be deceived into believing that the goods originated from or were connected with the proprietor of the "RED BULL" trade mark.

His Honour applied the established principles for assessing deceptive similarity, including the "imperfect recollection" test and the consideration of the "aural, visual and conceptual" aspects of the marks. The Court considered the distinctiveness of the opponent's mark, the nature of the goods, and the likely target audience for energy drinks. Ultimately, His Honour found that despite some differences, the marks were not deceptively similar, and the opponent's opposition was dismissed.