Kraft Food Australia Pty Ltd v Mars Australia Pty Ltd

Kraft Food Australia Pty Ltd (the applicant) sought to register the trade mark "FREE BARS" in relation to confectionery and snack foods. Mars Australia Pty Ltd (the opponent) opposed this application. The hearing was conducted by Iain Thompson, a delegate of the Registrar of Trade Marks.

The primary legal issue before the Registrar was whether the grounds on which the application was opposed had been established, thereby requiring the Registrar to decide whether to refuse or register the trade mark. The opponent's opposition was based on various grounds, including arguments related to the descriptive nature of the mark and its use in trade promotions.

The Registrar considered evidence from both parties, including statutory declarations from trade mark attorneys, marketing professionals, and advertising agency representatives. This evidence addressed the nature of trade promotions conducted by the applicant and the opponent, as well as the prevalence and effectiveness of "free bar" promotions within the confectionery and snack foods industry. The Registrar ultimately refused to register the trade mark application.

The Registrar awarded costs to the opponent, to be paid by the applicant on the official scale.