Monster Energy Company v Ox Group Global Pty Ltd

This matter concerned an opposition by Monster Energy Company against the registration of a trade mark by Ox Group Global Pty Ltd. The dispute arose from Ox Group Global's application to register a trade mark, and Monster Energy Company's objection to this application. The decision was made by Michael Kirov.

The court was required to determine whether Ox Group Global's proposed trade mark should be rejected under section 44(1) of the *Trade Marks Act 1995* (Cth). This involved assessing whether the applicant's trade mark was substantially identical with, or deceptively similar to, a registered trade mark owned by Monster Energy Company in respect of similar goods. The court also considered the admissibility of certain evidence submitted by the applicant shortly before the hearing.

In relation to the admissibility of evidence, the court ruled that additional annexures submitted by the applicant would not be taken into account as they constituted late evidence without an extension of time being sought or granted. However, the court did permit the consideration of a decision from the Intellectual Property Office of New Zealand concerning the same parties and trade marks, as no objection was raised by the opponent to its inclusion. On the substantive issue, the court applied the principles of deceptive similarity as outlined in *Shell Co of Australia Ltd v Esso Standard Oil (Aust) Ltd*, focusing on the impression consumers of ordinary intelligence and memory would have of the marks, rather than a side-by-side comparison. The court found that the goods covered by the opposed application were essentially coterminous with those covered by the registered mark, leaving deceptive similarity as the sole question.