Monster Energy Company v ODD Games Pty Ltd

Monster Energy Company (the opponent) opposed the registration of a trade mark by ODD Games Pty Ltd (the applicant). The dispute concerned whether the applicant's proposed trade mark infringed upon the reputation established in Australia by the opponent's "MONSTER ENERGY" trade marks. The decision was made by Bianca Irgang, a Hearing Officer.

The primary legal issue before the Hearing Officer was to determine whether the opponent had established that its "MONSTER ENERGY" trade marks had acquired a reputation in Australia prior to the applicant's priority date of 13 May 2016. Furthermore, the Hearing Officer had to assess whether, due to this reputation, the use of the applicant's trade mark would be likely to deceive or cause confusion among the relevant public. This assessment was to be conducted in accordance with the principles outlined in *Registrar of Trade Marks v Woolworths*, considering all surrounding circumstances and the potential use of the mark by the applicant.

The Hearing Officer found that the opponent had not established any grounds for opposition under section 60 of the relevant Act. The evidence presented by the opponent was insufficient to demonstrate that its "MONSTER ENERGY" trade marks had acquired the necessary reputation in Australia before the applicant's priority date. Consequently, the Hearing Officer determined that the use of the applicant's trade mark would not be likely to deceive or cause confusion. The Hearing Officer ordered that the trade mark application could proceed to registration one month from the date of the decision, unless an appeal was filed. Costs were awarded against the opponent.