Naturli' Foods A/S v Wholesome by Nature Pty Ltd

Naturli' Foods A/S opposed the registration of two trade mark applications, numbers 2108631 and 2108632, both for the mark "Wholesome by Nature" (one figurative, one word mark), filed by Wholesome by Nature Pty Ltd in Classes 29 and 30. The opposition was heard by Blake Knowles, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the opponent, Naturli' Foods A/S, had established any of the grounds of opposition relied upon. The opponent bore the burden of proving these grounds on the balance of probabilities, with the rights of the parties assessed as at the priority date of the applications.

The delegate found that the ground of opposition under section 41 of the *Trade Marks Act 1995* (Cth) was not established. The evidence presented by the opponent, including declarations from its CEO, detailed its use of the NATURLI' marks in Australia since 2019 for vegan food products, with appreciable but not enormous revenue and reasonable promotional expenditure. The opponent also provided definitions of "wholesome" and "nature" to support its arguments. The applicant's director provided evidence of the applicant's incorporation in July 2020 and the commencement of its product concepts and distribution in August 2020 and August 2021 respectively, for goods such as vegetable noodles and fruit-based snack foods.

Ultimately, the delegate concluded that the opponent had failed to establish any of the grounds of opposition. Consequently, the trade marks were permitted to proceed to registration, subject to a direction that registration would not occur if a notice of appeal was served, until the appeal was withdrawn or discontinued. The delegate awarded costs against the opponent in accordance with the Regulations, applying a practice of reduced costs for oppositions where substantially the same documents and evidence were filed.