Kellogg Company v PB Foods Ltd

The case of Kellogg Company v PB Foods Ltd involved a dispute over the registration of the word "TOUCAN" as a trade mark for fruit drinks and juices by PB Foods Ltd. Kellogg Company opposed the registration, arguing that it would likely deceive or cause confusion among consumers, as they believed it would associate PB’s products with their own brand, Froot Loops. The opposition was initially dismissed by the Registrar’s delegate, leading Kellogg to appeal to the court. The primary legal issue was whether the use of the mark "TOUCAN" would likely deceive or cause confusion among consumers, as per section 28(a) of the Trade Marks Act 1955.

The court examined the evidence presented by Kellogg, including a survey, and found it to be speculative, particularly in relation to brand extension. The court held that the admissibility of survey evidence is a matter for the trial judge’s discretion under the rules of evidence, but the evidence must meet certain criteria, such as proper methodology and representative sampling. The court decided that Kellogg’s survey evidence did not satisfy these criteria and thus should be given little weight.

In reaching its decision, the court noted that the delegate's decision was a fresh hearing, and it focused on Kellogg's argument that the delegate erred by not associating the word "TOUCAN" with Kellogg and by requiring blameworthy conduct from PB. The court clarified that, following a recent decision, Kellogg was not required to demonstrate blameworthy conduct by PB. Instead, the court found that the use of the word "TOUCAN" as a trade mark was likely to deceive or cause confusion, and thus, the application for registration should be dismissed. The court also ordered that PB Foods Ltd pay Kellogg Company's costs.