Opposition by Hive & Wellness Australia Pty Ltd to registration of trade mark application 1955356 (5, 31, 44) – CAPILANO – in the name of Aphria Inc.

Hive & Wellness Australia Pty Ltd (the Opponent) opposed the registration of trade mark application number 1955356, for the mark CAPILANO, in the name of Aphria Inc. (the Applicant). The opposition was heard by Nicholas Smith, Hearing Officer and Delegate of the Registrar of Trade Marks. The Opponent sought to prevent the registration of the CAPILANO mark in classes 5, 31, and 44, raising grounds of opposition under sections 42(b), 44, 58, 60, and 62A of the *Trade Marks Act 1995* (Cth).

The primary legal issues before the Hearing Officer were whether the grounds of opposition, particularly those relating to the similarity of goods and services under section 44 and the potential for deception or confusion under section 60, could be established. The Opponent contended that the goods for which the CAPILANO mark was sought to be registered were of the same description as, or similar to, the goods for which the Opponent held a registered trade mark, specifically foodstuffs in class 30. The Applicant’s goods included cannabis derivatives and accessories.

The Hearing Officer found that the Opponent had failed to establish any of the grounds of opposition. In relation to section 44, the Hearing Officer determined that cannabis and hemp were not the same products, distinguishing between a regulated medical product with psychoactive effects and a foodstuff or material available to the general public. The Hearing Officer also found that the Applicant's goods did not include cannabis honey or similar food products. Consequently, the Applicant's goods were considered to be of a different nature, for a different purpose, and sold through different trade channels than the Opponent's class 30 goods, meaning the requirements for section 44 were not met. The Hearing Officer also implicitly found that the grounds under sections 42(b), 58, 60, and 62A were not established, as the overall finding was that the Opponent had failed to establish *any* of the nominated grounds.

As a result, the Hearing Officer ordered that trade mark application number 1955356 may proceed to registration, subject to a one-month waiting period from the decision date, unless an appeal was filed. The Applicant was awarded costs against the Opponent.