Iceberg the Frozen Drink Company Pty Ltd v Chia Kim Lee Food Industries Pte Ltd

Iceberg the Frozen Drink Company Pty Ltd (Iceberg) sought to restrain Chia Kim Lee Food Industries Pte Ltd (Chia Kim Lee) from infringing its trade mark. The dispute concerned the use of the mark "ICEBERG" in relation to frozen drinks and related products. The matter came before Justice Terry Williams in the Federal Court of Australia.

The primary legal issue before the court was whether Chia Kim Lee's use of the mark "ICEBERG" on its frozen drinks constituted a contravention of section 120(1) of the *Trade Marks Act 1995* (Cth). This required the court to determine if the mark used by Chia Kim Lee was substantially identical with, or deceptively similar to, Iceberg's registered trade mark for "ICEBERG". A secondary issue, if infringement was found, was the appropriate relief to be granted.

Justice Williams considered the visual and aural similarities between the marks, as well as the conceptual implications. His Honour noted that the marks were identical in spelling and pronunciation. Furthermore, the goods in question were identical, being frozen drinks. Applying the principles of deceptive similarity, which involve considering the overall impression of the marks and the likelihood of confusion among consumers, the court found that the marks were substantially identical. Consequently, the use of the mark by Chia Kim Lee was found to infringe Iceberg's registered trade mark.

The court ordered that Chia Kim Lee be restrained from infringing Iceberg's trade mark and awarded Iceberg its costs of the proceeding.