LD&D Foods Pty Ltd v Fantasyonice Limited

This matter concerned an opposition by LD&D Foods Pty Ltd (the Opponent) against an application by Fantasyonice Limited for protection of an international registration designating Australia (IRDA). The hearing officer, Debrett Lyons, was required to determine whether the Opponent had established a ground of opposition.

The central legal issue was the Opponent's claim that the registration of the IRDA would be likely to cause confusion with its existing trade marks, specifically in relation to food products. This involved assessing the distinctiveness and reputation of the Opponent's trade marks, which included variations of "YOGO" and related terms across various classes of goods and services, against the applied-for mark. The Opponent sought to rely on evidence of its advertising and sales figures to demonstrate the reputation of its marks.

The hearing officer considered the evidence presented, including confidential annexures containing sales and advertising figures. The Opponent's solicitors provided a letter outlining the terms under which this confidential information could be disclosed in the decision, permitting reference to figures as being "in excess of" certain amounts. The hearing officer noted that the sales figures were presented as an expense, but acknowledged that for the period 2001 to 2010, these figures were in the tens of millions of dollars. The hearing officer also referred to the Opponent's registered trade marks, which included "YOGO" in classes 29 and 30 for food products, and other related marks.

Ultimately, the hearing officer concluded that the Opponent had not established a ground of opposition. The decision stated that protection of the IRDA would be extended to Australia one month from the date of the decision, unless a notice of appeal was served, in which case the extension of protection would be delayed until the appeal was resolved.