Monster Energy Company v PepsiCo

In the matter of *Monster Energy Company v PepsiCo*, heard by Timothy Brown, the dispute concerned an opposition to the registration of a trade mark by Monster Energy Company (the Opponent) against PepsiCo (the Applicant). The Opponent sought to prevent the registration of the Applicant's trade mark, citing several grounds under the *Trade Marks Act 1995* (Cth).

The court was required to determine whether the Applicant's proposed trade mark should be rejected based on grounds of opposition under sections 42(b), 44, and 60 of the *Trade Marks Act 1995* (Cth). The Opponent bore the onus of establishing at least one of these grounds on the balance of probabilities, with the relevant date for determining the rights of the parties being the priority date of the Applicant's trade mark, 25 September 2018.

The court considered the evidence presented by the Applicant, including a declaration detailing the history of its use of the trade mark in question, which originated with Smith's Potato Crisps Ltd in 1977 and has been in continuous use in the United Kingdom since 1995. The court noted that goods bearing the trade mark are available from independent retailers in Australia and that the trade mark coexists with the Opponent's MONSTER trade marks in several other jurisdictions. In relation to section 44(1), which requires rejection if the applicant's trade mark is substantially identical with or deceptively similar to a registered trade mark of another person for similar goods or services with an earlier priority date, the Opponent relied on its registered trade mark, MONSTER MEAL DEAL, with a priority date of 28 June 2017. The court found that the Applicant was not the owner of this registration and that its priority date preceded that of the Applicant's trade mark.

Ultimately, the court found that none of the grounds of opposition, including section 62A which was considered for completeness, were established. Consequently, the opposition failed, and the trade mark was permitted to proceed to registration.