IFit Inc v Coles Group Limited

This matter concerned an opposition by IFit Inc to the registration of a trade mark by Coles Group Limited. The opposition was brought under section 52 of the *Trade Marks Act 1995* (Cth), with grounds including sections 42(b), 44, and 60 of the Act. The hearing officer was Jonathon Galloway.

The primary legal issue before the hearing officer was whether the proposed registration of Coles Group Limited's trade mark should be refused. Specifically, the hearing officer had to determine if the use of the trade mark would be contrary to law, as provided by section 42(b) of the *Trade Marks Act 1995* (Cth), by contravening sections 18 or 29 of the Australian Consumer Law. The opponent contended that such use would mislead or deceive consumers.

In reaching his decision, the hearing officer considered the requirements for establishing an opposition under section 42(b), which necessitates demonstrating on the balance of probabilities that the use of the trade mark would, rather than merely could or might, contravene the Australian Consumer Law. Applying this standard, and for reasons previously outlined in relation to the section 60 ground of opposition, the hearing officer found that it was not likely that the use of the trade mark would mislead or deceive an ordinary or reasonable consumer into believing that the trade mark and the opponent's trade marks were related. Consequently, the ground of opposition under section 42(b) was not established.

As none of the nominated grounds of opposition were established, the hearing officer decided that the trade mark application could proceed to registration. The hearing officer also ordered that costs be awarded against the opponent, as they had not succeeded in their opposition.