Matthias Rath v Biofarma

This decision concerns a trade mark opposition brought by Biofarma against an application by Matthias Rath for trade mark number 902498. Biofarma opposed the application on the grounds that the mark was deceptively similar to its own registered trade marks, thereby infringing section 44 of the *Trade Marks Act 1995* (Cth).

The primary legal issue before the Senior Examiner was whether Biofarma had established that the applicant's trade mark was deceptively similar to any of its registered trade marks, such that it would be likely to deceive or cause confusion in the marketplace. This required an assessment of the "third leg" of section 44, which pertains to the likelihood of deception or confusion.

The Senior Examiner found that Biofarma had failed to provide any evidence of actual deception or confusion in the Australian marketplace. While Biofarma had provided sales figures for its trade mark use in Europe, there were no Australian sales figures despite the trade mark's first use in Australia dating back to August 2002. The applicant had also not provided evidence of use. Consequently, the Senior Examiner concluded that the ground of opposition under section 44 had not been made out, finding that the trade marks were not deceptively similar.

Trade mark application number 902498 was permitted to proceed to registration one month from the date of the decision, unless a notice of appeal was filed with the Registrar, in which case registration would be stayed pending the outcome of the appeal. Costs were awarded against Biofarma according to the Official Scale.