Opposition by Biofarma to registration of trade mark application 1782506 (5) – NURAMEL - in the name of Ramsay Health Care Investments Pty Limited

This decision concerns an opposition by Biofarma to the registration of the trade mark application 1782506, NURAMEL, filed by Ramsay Health Care Investments Pty Limited. The opposition was heard by Hearing Officer Nicholas Smith.

The primary legal issue before the Hearing Officer was whether the applicant's trade mark, NURAMEL, was substantially identical or deceptively similar to the opponent's earlier registered trade mark, MUNAREL, for the purposes of section 44 of the *Trade Marks Act 1995* (Cth). The opponent also contended that the applicant had deliberately chosen to copy its trade mark, evidenced by the fact that NURAMEL is an anagram of MUNAREL.

The Hearing Officer applied the principles established in *Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd* and further elaborated in cases such as *Millennium & Copthorne International Limited v Kingsgate Hotel Group Pty Ltd* regarding the assessment of substantial identity and deceptive similarity. He noted that substantial identity requires a side-by-side comparison, while deceptive similarity involves assessing the impression left on a person of ordinary intelligence and memory, allowing for imperfect recollection. The Hearing Officer found that while the goods for which the marks were registered were similar, the marks themselves were not substantially identical due to clear visual differences. He further concluded that despite some phonetic similarities and the anagrammatic relationship, the marks were not deceptively similar, citing significant visual, aural, and conceptual differences when considered as a whole. The submission that the applicant deliberately copied the mark was unpersuasive, particularly as the opponent's mark was not currently in use.

Consequently, the Hearing Officer found that the opponent had failed to establish the ground of opposition under section 44. The trade mark application 1782506 was permitted to proceed to registration, subject to any appeal.