Opposition by Energy Beverages LLC to registration of trade mark application 1989429 (5, 29, 30, 31, 32) – KANGAROO MOTHER – in the name of Kangaroo Mother Australia Pty Ltd

Energy Beverages LLC (the Opponent) opposed the registration of trade mark application 1989429, KANGAROO MOTHER, in the name of Kangaroo Mother Australia Pty Ltd (the Applicant), for goods in Classes 5, 29, 30, 31, and 32. The hearing officer, Robert Wilson, considered grounds of opposition under sections 42(b), 44, and 60 of the *Trade Marks Act 1995* (Cth). The onus of proof rested on the Opponent, and the standard of proof was the ordinary civil standard on the balance of probabilities. The relevant date for determining the rights of the parties was 15 February 2019, which was also the priority date for the purposes of sections 44 and 60.

The legal issues before the hearing officer were whether the KANGAROO MOTHER trade mark application should be refused registration based on the grounds of opposition raised by the Opponent. Specifically, the hearing officer had to determine if the KANGAROO MOTHER mark was identical or deceptively similar to any registered trade marks owned by the Opponent for similar or closely related goods or services, as contemplated by section 44. The hearing officer also considered whether the use of the KANGAROO MOTHER mark would be likely to deceive or cause confusion, or whether it was likely to be confused with a trade mark that had acquired a reputation in Australia, as per sections 42(b) and 60 respectively.

The hearing officer found that the Opponent had failed to establish any of the grounds of opposition it had nominated. The Applicant had amended its specification of goods and services prior to the hearing, deleting coffee-based beverages and sports drinks from Classes 30 and 32. The hearing officer concluded that, based on the evidence presented and the relevant legislative provisions, the KANGAROO MOTHER trade mark application was not barred from registration.

Consequently, the hearing officer decided that the KANGAROO MOTHER trade mark application could proceed to registration one month from the date of the decision, unless an appeal was filed. The Applicant was awarded costs against the Opponent.