MomoIP LLC v Nissin Foods Holdings Co Ltd

This matter concerned an opposition by MomoIP LLC (the Opponent) to an application by Nissin Foods Holdings Co Ltd (the Holder) for the extension of protection of an international registration designation to Australia (IRDA). The Opponent relied on several grounds of opposition, including those under sections 42(b), 44, 58, and 60 of the *Trade Marks Act 1995* (Cth). The dispute centred on whether the Holder's proposed trade mark was identical or deceptively similar to the Opponent's registered trade mark and whether the goods and services were similar or closely related.

The primary legal issue before the Hearing Officer was to determine whether the grounds of opposition, particularly under section 44, had been established. This required an assessment of whether the Holder's trade mark was substantially identical with, or deceptively similar to, the Opponent's registered trade mark, and whether the goods and services covered by each were similar or closely related. The Hearing Officer also considered the definition of "closely related" in the context of goods and services, drawing on established case law.

In reaching a decision, the Hearing Officer analysed the evidence presented regarding the Opponent's business, which included its restaurant operations and expansion into consumer products, such as sauces and noodles, sold both online and through retailers. The Hearing Officer noted that the Opponent's website had featured an Australian restaurant location and offered goods for sale, including ssam sauce, prior to the relevant date. The Hearing Officer applied the principles from *Registrar of Trade Marks v Woolworths Ltd* and subsequent cases, considering the function of services in relation to goods, the nature, function, and circumstances of trade, and the likelihood of consumer association. The Hearing Officer found that the Opponent had not satisfied the burden of proof to establish a ground of opposition.

Consequently, the Hearing Officer decided not to refuse the extension of protection for the IRDA. The Hearing Officer awarded costs against the Opponent in favour of the Holder, as is normal when a party is successful.