Opposition by Bega Cheese Limited to registration of trade mark application number 1908522 (29) - BUTTERMITE - in the name of Vincenzo Fasanella

This matter concerned an opposition by Bega Cheese Limited to the registration of the trade mark application number 1908522, for the mark BUTTERMITE, filed by Vincenzo Fasanella. The opposition was brought before the Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether the registration of the BUTTERMITE trade mark should be refused on the grounds specified in the *Trade Marks Act 1995* (Cth), particularly under section 60, which relates to trade marks similar to those that have acquired a reputation in Australia. Bega Cheese Limited, as the opponent, bore the onus of establishing at least one ground of opposition on the balance of probabilities.

The Delegate found that Bega Cheese Limited had successfully established its ground of opposition under section 60 of the Act. This was based on evidence demonstrating that the VEGEMITE trade mark, owned by Bega Cheese Limited, had acquired a substantial and valuable reputation in Australia prior to the priority date of the BUTTERMITE application. The Delegate concluded that, due to this reputation, the use of the BUTTERMITE trade mark was likely to deceive or cause confusion. Consequently, the Delegate refused to register trade mark application number 1908522. The Delegate also awarded costs against the applicant, Vincenzo Fasanella, in accordance with the usual principle that costs follow the event.