Mount Everest Mineral Water Pty Ltd v Himalayan Spring Mineral Water Pty Ltd

This matter concerned an application by Mount Everest Mineral Water Pty Ltd for the registration of a trade mark, opposed by Himalayan Spring Mineral Water Pty Ltd. The dispute centred on whether the proposed trade mark was likely to deceive or cause confusion under section 43 of the *Trade Marks Act 1995* (Cth). The applicant sought to register the trade mark "Himalayan Spring Mineral Water" for mineral water sourced from the Himalayas.

The court was required to determine if the use of the trade mark "Himalayan Spring Mineral Water" in relation to the applicant's goods would be likely to deceive or cause confusion, as contemplated by section 43 of the Act. The opponent argued that the trade mark directly signified that the mineral water was bottled and/or sourced in the Himalayas, and that its use on a product not meeting this description would be misleading.

The Hearing Officer found that the opponent had not established its opposition. The reasoning applied was that while the trade mark clearly indicated a Himalayan origin, the opponent had failed to adduce evidence to demonstrate that the applicant's product did not, in fact, originate from the Himalayas. The Hearing Officer noted that the opponent had not provided any evidence to contradict the applicant's declaration that the water was sourced from the Himalayas.

Consequently, the Hearing Officer decided to allow the trade mark application to proceed to registration, subject to the usual one-month period for appeals. The applicant was awarded costs against the opponent, given its success in the proceedings and the opponent's failure to adduce evidence despite obtaining extensions of time.