Monster Energy Company v Lukasz Grzegolec

Monster Energy Company (the Opponent) opposed the registration of a trade mark by Lukasz Grzegolec (the Applicant). The dispute concerned the Applicant's trade mark application, which the Opponent sought to prevent from proceeding to registration. The matter was heard by a delegate of the Registrar of Trade Marks.

The Opponent raised grounds of opposition under sections 42(b), 44, 60, and 62A of the *Trade Marks Act 1995* (Cth). The core legal issues before the delegate were whether the Applicant's trade mark was deceptively similar to the Opponent's registered trade mark, whether the Applicant's mark was likely to deceive or cause confusion, and whether the Applicant's mark was capable of distinguishing the Applicant's goods or services. The Opponent also contended that the Applicant's mark was not capable of distinguishing its goods or services.

The delegate considered the evidence filed by both parties, noting that much of the Opponent's evidence related to the use of "Monster" formative marks or a claw device, rather than the specific trade mark relied upon in the opposition. The delegate found that the key similarity between the marks was the shared word "beast," but that the marks were otherwise visually, aurally, and conceptually dissimilar. The delegate reasoned that the Opponent did not hold a monopoly on the use of the term "beast" in relation to clothing and similar goods, and that the mere use of this term would not necessarily cause a real danger of deception or confusion. The delegate declined to speculate on the possibility of the Applicant using the trade mark alongside additional styling or devices that might increase the risk of confusion.

Having considered the grounds of opposition and the evidence, the delegate concluded that none of the grounds of opposition had been established. Accordingly, the delegate ordered that the trade mark proceed to registration.