Kimberly-Clark Worldwide, Inc v Woolworths Group Limited

Kimberly-Clark Worldwide, Inc. opposed Woolworths Group Limited's applications to register certain trade marks. The dispute concerned the potential for Woolworths' proposed trade marks to deceive or cause confusion in the Australian market, particularly in relation to nappy goods. The matter was heard by Bianca Irgang, a Hearing Officer.

The primary legal issue before the Hearing Officer was whether the grounds of opposition pressed by Kimberly-Clark under the *Trade Marks Act 1995* (Cth) had been established. Specifically, the opposition relied on sections 42(b), 60, and 62A of the Act. The core of the opposition under section 60 was whether Kimberly-Clark's existing trade marks had acquired a reputation in Australia such that the use of Woolworths' proposed marks would be likely to deceive or cause confusion.

The Hearing Officer applied the principles for assessing the likelihood of confusion as set out in *Registrar of Trade Marks v Woolworths*, which require consideration of all surrounding circumstances, including the context of use, purchasing habits, and the nature of the likely consumers. The assessment of deceptive similarity is to be made in respect of all goods and services within the specification for which registration is sought, and based on the potential use of the mark if registration is obtained, not merely its past use. In this instance, the Hearing Officer found that Kimberly-Clark had not established any of the grounds of opposition.

Consequently, the Hearing Officer decided that the trade mark applications could proceed to registration one month from the date of the decision, unless an appeal was filed. The Hearing Officer also awarded costs against the opponent, Kimberly-Clark.