Opposition by KELLOGG COMPANY to registration of trade mark application number 597207 in the name of CRESWIN PTY LTD for the mark COCO FLAKES in class 30

This matter concerned an opposition by Kellogg Company to the trade mark application number 597207 by Creswin Pty Ltd for the mark COCO FLAKES in class 30. The opposition was heard by Ian Forno.

The primary legal issue before the court was whether the applicant's mark, COCO FLAKES, was deceptively similar to the opponent's registered trade mark, COCO POPS, for goods in class 30, specifically breakfast cereals. The court was required to consider the application of section 44 of the *Trade Marks Act 1995* (Cth), which deals with the grounds for opposition based on the existence of an earlier trade mark.

The court applied the established principles for assessing deceptive similarity, which involve considering the visual, aural, and conceptual resemblance between the marks, as well as the nature of the goods in question and the circumstances in which they are likely to be encountered by consumers. The court found that while both marks contained the word "COCO" and related to breakfast cereals, the distinctiveness of the word "POPS" in the opponent's mark, when compared to "FLAKES" in the applicant's mark, created a sufficient difference to avoid deceptive similarity. The court reasoned that the common element "COCO" was descriptive of the flavour, and the differing second elements were sufficiently distinct to differentiate the marks in the minds of consumers.

The opposition was therefore dismissed.