Oatly AB v Oat Baby Pty Ltd

Oatly AB opposed the registration of the trade mark "OAT BABY" (application number 2069905) by Oat Baby Pty Ltd in classes 29, 30, and 32. The opposition was heard by Tracey Berger, Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether Oatly AB could establish a ground of opposition under section 44 of the *Trade Marks Act 1995* (Cth). This required Oatly AB to demonstrate that a trade mark registered or applied for by a person other than Oat Baby Pty Ltd had an earlier priority date, was substantially identical or deceptively similar to the "OAT BABY" mark, and was in respect of similar or closely related goods or services.

The Hearing Officer considered the evidence presented, including declarations regarding the adoption and development of oat-based products and the existence of other "OAT-" prefix marks on the Register. Applying the principles of comparison for substantial identity, the Hearing Officer found that despite the common element "OAT," the trade mark "OAT BABY" was not substantially identical to any of Oatly AB's registered marks. Furthermore, the Hearing Officer was not satisfied that "OAT BABY" was deceptively similar to any of Oatly AB's marks.

As Oatly AB failed to establish the ground of opposition under section 44, the opposition was dismissed. The trade mark application for "OAT BABY" was permitted to proceed to registration one month from the date of the decision, unless an appeal was filed. Oat Baby Pty Ltd was awarded costs against Oatly AB.