Opposition by Local Kitchen Co Pty Ltd to registration of trade mark application numbers 2367277 (classes 29 and 30) – - [2025] ATMO 149

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Local Kitchen Co Pty Ltd to registration of trade mark application numbers 2367277 (classes 29 and 30) – LOCAL KITCHEN a fresh approach to family owned (stylized) – and 2367279 (classes 29 and 30) - LOCAL KITCHEN a fresh approach to family owned (stylized) in the name of PMFresh Pty Ltd

Delegate: Bianca Irgang

Representation:
Opponent: Mr Ryan Maguire of counsel instructed by Madderns Pty Ltd

Applicant: Mr Peter Whitehead of Hazan Hollander

Decision: 2025 ATMO 149
Trade Marks Act 1995 (Cth) - Section 52 opposition: sections 42(b) and 60 pressed at hearing – no ground of opposition established.
Background

PMFresh Pty Ltd (‘the Applicant’), filed trade mark application numbers 2367277 and 2367279 on 27 June 2023 in classes 29 and 30 of the Nice Agreement Concerning the International Classification of Goods and Services. Current details of the applications are set out below.
Trade mark:
Trade mark number:           2367277
Filing Date:  27 June 2023 (‘Priority Date’)
Specification:  Class 29: Fruit salads; Potato salad; Salads containing meat; Salads containing poultry; Food preparations consisting principally of meat; Food preparations consisting principally of meat products; Food preparations consisting wholly or substantially wholly of milk; Food preparations having a base of milk; Food preparations made from meat; Foods prepared from milk; Prepared foods consisting principally of cheese; Prepared foods consisting principally of fish; Prepared foods consisting principally of fruits; Prepared meals consisting principally of chicken; Prepared meals consisting principally of fish; Prepared meals consisting principally of game; Prepared meals consisting principally of meat; Prepared meals consisting principally of mushrooms; Prepared meals consisting principally of poultry; Prepared meals consisting principally of seafood; Prepared meals consisting principally of tofu; Prepared meals consisting wholly or principally of potatoes; Prepared meals containing principally potato; Prepared meals made from fruit (fruit predominating); Prepared meals made from meat (meat predominating); Prepared meals made from poultry (poultry predominating); Prepared meals made of eggs (eggs predominating); Prepared meals made principally of cheese; Frozen prepared meals consisting principally of fish; Frozen prepared meals consisting principally of meat; Frozen prepared meals consisting principally of poultry; Vegetable salads; Boiled vegetables; Canned vegetables; Cooked dishes with vegetables (vegetables predominating); Cooked meals consisting principally of meat and vegetables; Cooked meals consisting principally of vegetables; Cooked vegetables; Deep frozen vegetables; Dried vegetables; Food products made from cooked vegetables; Food products made from dried vegetables; Food products made from preserved vegetables; Food spreads consisting principally of vegetables for sandwiches; Freeze-dried vegetables; Frozen vegetables; Meat substitutes prepared from vegetables (textured vegetable protein); Mixed processed vegetables; Mixed vegetables, sliced; Mixtures of vegetables and herbs; Pastry fillings of vegetables; Peeled vegetables; Pickled vegetables; Pre-cut, ready to serve vegetables; Prepared snacks made from cooked vegetables; Prepared snacks made from dried vegetables; Prepared snacks made from fresh vegetables; Prepared vegetable products; Prepared vegetables; Preserved vegetables; Preserves made from vegetables; Processed vegetables; Root vegetables (cooked); Root vegetables (dried); Root vegetables (preserved); Seafood substitutes prepared from vegetables (textured vegetable protein); Snack foods made from dehydrated vegetables; Snack foods made from dried vegetables; Snack foods made from extruded vegetables; Snack foods made from pre-cooked vegetables; Stir fry vegetables; Sweet pickle (pickled fruit or vegetables); Tinned vegetables; Vegan foods consisting predominantly of vegetables; Vegetable based meat substitutes; Vegetable based seafood substitutes; Vegetable burgers (vegetable patties); Vegetable concentrates; Vegetable crisps; Vegetable extracts for culinary purposes; Vegetable extracts for the preparation of soups; Vegetable fats (edible); Vegetable fats for cooking; Vegetable juice concentrates for cooking; Vegetable juice concentrates for culinary purposes; Vegetable juices for cooking; Vegetable mousses; Vegetable oil for culinary purposes; Vegetable preserves; Vegetable pulps (puree) for culinary purposes; Vegetable rings; Vegetable soup preparations; Vegetable stock; Vegetable terrines; Vegetable-based concentrate for cooking; Vegetable-based cream; Vegetable-based dips; Vegetable-based food; Vegetable-based snack food; Vegetable-based spreads; Vegetables (processed); Vegetables, canned; Vegetables, cooked; Vegetables, dried; Vegetables, preserved; Vegetables, processed; Vegetables, tinned; Vegetable based food preparations; Food preparations having a base of vegetables; Food preparations with a vegetable base; Frozen prepared meals consisting principally of vegetables; Prepared meals, predominantly of meat or vegetables; Vegetable-based prepared meals for toddlers; Prepared meals consisting principally of vegetables
Class 30:Dressings for salad; Pasta salads; Rice salads; Salad dressings; Sandwiches containing salad; Pastries consisting of vegetables and fish; Pastries consisting of vegetables and meat; Pastries consisting of vegetables and poultry; Pies containing vegetables; Tomato and vegetable based sauces; Vegetable based coffee substitutes; Vegetable flavoured corn chips; Vegetable flour; Vegetable pastes (sauces); Vegetable pies; Vegetable pulps (sauces); Vegetable purees (sauces); Vegetable thickeners; Aromatic preparations for food; Aromatic preparations for the food production industry; Essences for use in food preparation (other than essential oils); Food preparations for making puddings; Preparations for use as rising agents in food; Snack foods prepared from cereals; Snack foods prepared from grains; Snack foods prepared from maize; Snack foods prepared from potato flour; Noodle-based prepared meals; Prepared meals containing (principally) pasta; Prepared meals containing (principally) rice; Prepared meals in the form of pizzas; Prepared pasta meals; Prepared pizza meals
Trade mark:
Trade mark number:           2367279
Filing Date:  27 June 2023 (‘Priority Date’)
Specification:  Class 29: Fruit salads; Potato salad; Salads containing meat; Salads containing poultry; Food preparations consisting principally of meat; Food preparations consisting principally of meat products; Food preparations consisting wholly or substantially wholly of milk; Food preparations having a base of milk; Food preparations made from meat; Foods prepared from milk; Prepared foods consisting principally of cheese; Prepared foods consisting principally of fish; Prepared foods consisting principally of fruits; Prepared meals consisting principally of chicken; Prepared meals consisting principally of fish; Prepared meals consisting principally of game; Prepared meals consisting principally of meat; Prepared meals consisting principally of mushrooms; Prepared meals consisting principally of seafood; Prepared meals consisting principally of poultry; Prepared meals consisting principally of tofu; Prepared meals consisting wholly or principally of potatoes; Prepared meals containing principally potato; Prepared meals made from fruit (fruit predominating); Prepared meals made from meat (meat predominating); Prepared meals made from poultry (poultry predominating); Prepared meals made of eggs (eggs predominating); Prepared meals made principally of cheese; Frozen prepared meals consisting principally of fish; Frozen prepared meals consisting principally of meat; Frozen prepared meals consisting principally of poultry; Vegetable salads; Food preparations having a base of vegetables; Food preparations with a vegetable base; Vegetable based food preparations; Boiled vegetables; Canned vegetables; Cooked dishes with vegetables (vegetables predominating); Cooked meals consisting principally of meat and vegetables; Cooked meals consisting principally of vegetables; Cooked vegetables; Deep frozen vegetables; Dried vegetables; Food products made from cooked vegetables; Food products made from dried vegetables; Food products made from preserved vegetables; Food spreads consisting principally of vegetables for sandwiches; Freeze-dried vegetables; Frozen vegetables; Meat substitutes prepared from vegetables (textured vegetable protein); Mixed processed vegetables; Mixed vegetables, sliced; Mixtures of vegetables and herbs; Pastry fillings of vegetables; Peeled vegetables; Pickled vegetables; Pre-cut, ready to serve vegetables; Prepared snacks made from cooked vegetables; Prepared snacks made from dried vegetables; Prepared snacks made from fresh vegetables; Prepared vegetable products; Preserves made from vegetables; Preserved vegetables; Prepared vegetables; Processed vegetables; Root vegetables (cooked); Root vegetables (dried); Root vegetables (preserved); Seafood substitutes prepared from vegetables (textured vegetable protein); Snack foods made from dehydrated vegetables; Snack foods made from dried vegetables; Snack foods made from extruded vegetables; Snack foods made from pre-cooked vegetables; Stir fry vegetables; Sweet pickle (pickled fruit or vegetables); Tinned vegetables; Vegan foods consisting predominantly of vegetables; Vegetable based meat substitutes; Vegetable based seafood substitutes; Vegetable burgers (vegetable patties); Vegetable concentrates; Vegetable crisps; Vegetable extracts for culinary purposes; Vegetable extracts for the preparation of soups; Vegetable fats (edible); Vegetable fats for cooking; Vegetable juice concentrates for cooking; Vegetable juice concentrates for culinary purposes; Vegetable juices for cooking; Vegetable mousses; Vegetable oil for culinary purposes; Vegetable preserves; Vegetable pulps (puree) for culinary purposes; Vegetable rings; Vegetable soup preparations; Vegetable stock; Vegetable terrines; Vegetable-based concentrate for cooking; Vegetable-based cream; Vegetable-based dips; Vegetable-based food; Vegetable-based snack food; Vegetable-based spreads; Vegetables (processed); Vegetables, canned; Vegetables, cooked; Vegetables, dried; Vegetables, preserved; Vegetables, processed; Vegetables, tinned; Frozen prepared meals consisting principally of vegetables; Prepared meals, predominantly of meat or vegetables; Vegetable-based prepared meals for toddlers; Prepared meals consisting principally of vegetables
Class 30:Dressings for salad; Pasta salads; Rice salads; Salad dressings; Sandwiches containing salad; Aromatic preparations for food; Aromatic preparations for the food production industry; Essences for use in food preparation (other than essential oils); Food preparations for making puddings; Preparations for use as rising agents in food; Snack foods prepared from cereals; Snack foods prepared from grains; Snack foods prepared from maize; Snack foods prepared from potato flour; Pastries consisting of vegetables and fish; Pastries consisting of vegetables and meat; Pastries consisting of vegetables and poultry; Pies containing vegetables; Tomato and vegetable based sauces; Vegetable based coffee substitutes; Vegetable flavoured corn chips; Vegetable flour; Vegetable pastes (sauces); Vegetable pies; Vegetable pulps (sauces); Vegetable purees (sauces); Vegetable thickeners; Noodle-based prepared meals; Prepared meals containing (principally) pasta; Prepared meals containing (principally) rice; Prepared meals in the form of pizzas; Prepared pasta meals; Prepared pizza meals
For ease of reference throughout the decision I will refer to the Applicant’s trade marks collectively as the Trade Mark and the goods of the Applicant collectively as the Applicant’s Goods.
Acceptance of the applications for possible registration was published in the Australian Official Journal of Trade Marks on 28 November 2023. Subsequently, Local Kitchen Co Pty Ltd (‘the Opponent’) filed its Notices of Intention to Oppose registration followed by its Statements of Grounds and Particulars (the ‘SGP’[1]).
[1] Which together constitute ‘the Notice’.
The Applicant then filed its Notices of Intention to Defend. Thereafter, the Opponent filed evidence in accordance with the provisions of the Trade Mark Regulations 1995 (‘the Regulations’). The Applicant did not file any evidence.
I heard the opposition in Canberra as a delegate of the Registrar of Trade Marks on 5 May 2025. The Applicant was represented by Mr Peter Whitehead of Hazan Hollander. The Opponent was represented by Mr Ryan Maguire of counsel instructed by Madderns Pty Ltd.
Grounds of Opposition
The Notice nominated grounds of opposition under ss 42(b), 58 and 60 the Trade Marks Act 1995 (‘the Act’). In the Opponent’s written submissions, the Opponent indicated it was not pressing the s 58 ground of opposition. I therefore treat this ground as abandoned. The onus is upon the Opponent to establish one or more of its grounds of opposition. The Full Court in Telstra Corporation Limited v Phone Directories Company Pty Ltd[2] affirmed the approach in Pfizer Products Inc. v Karam[3] where Gyles J referred to the standard of proof required in these matters in terms of a ‘balance of probabilities’.
Evidence
[2] [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
[3] [2006] FCA 1663, [26].
The evidence in these matters consists of the following declaration:
Evidence in Support
·Declaration of Sarsha Harvey, director of the Opponent, (‘Harvey’) made on 25 June 2024 including exhibits SH01 to SH21.
Discussion
Section 60 - Reputation in Australia
Section 60 of the Act provides:
60 Trade mark similar to trade mark that has acquired a reputation in Australia
The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:
(a)another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and
(b)because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.
To establish the ground of opposition under s 60 the Opponent is relying predominantly on its use of and reputation in the trade marks below:
I note from the evidence that these two marks are often used in close proximity to each other and I will refer to them collectively for the remainder of this decision as the Opponent’s Trade Mark. I further note that the Opponent’s goods and services are the same/ similar or closely related to the Applicant’s Goods.
The principles relevant to the assessment of the likelihood of confusion were set out by French J in Registrar of Trade Marks v Woolworths:[4]
(ii) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt.
It may be interpolated that this is another way of expressing the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source.
(iii) In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services.
(iv) The rights of the parties are to be determined as at the date of the application.
(v) The question of deceptive similarity must be considered in respect of all goods or services coming within the specification in the application and in respect of which registration is desired, not only in respect of those goods or services on which it is proposed to immediately use the mark. The question is not limited to whether a particular use will give rise to deception or confusion. It must be based upon what the applicant can do if registration is obtained.
In respect of the last proposition, Mason J observed in Berlei Hestia Industries Ltd v The Bali Company Inc:[5]
“...the question whether there is a likelihood of confusion is to be answered, not by reference to the manner in which the respondent has used its mark in the past, but by reference to the use to which it can properly put the mark. The issue is whether that use would give rise to a real danger of confusion.”
[4] [1999] FCA 1020 [50].
[5] [1973] HCA 43; (1973) 129 CLR 353, 362.
Reputation is to be assessed according to the test set out in McCormick & Company Inc v McCormick[6] by Kenny J:
What is intended by the word “reputation” in s 60? The word is defined in The Macquarie Dictionary as follows:
reputation ... 1. the estimation in which a person or thing is held, esp. by the community or the public generally; repute ... 2. favourable repute; good name ... 3. A favourable and publicly recognised name or standing for merit, achievement, etc. ... 4. The estimation or name of being, having done, etc, something specified.
Cf. The Oxford English Dictionary. In s 60, the word is, I think, apt to refer to “the recognition of the McCormick & Co marks by the public generally”.
Does the evidence establish that in Australia before 9 March 1992 the McCormick & Co marks were recognised by the public generally and, because of that, the use by Mary McCormick of her marks would be likely to cause the public confusion, as for example, by the public’s mistakenly attributing a business connection between the two or attributing her product to the company?
[6] [2000] FCA 1335 [81].
For background, Harvey avers that the Opponent was incorporated on 6 July 2021.[7] According to Harvey, the Opponent commenced using the name LOCAL KITHEN CO with respect to its food business in July 2021 and that the name was chosen to evoke feelings of locally produced, fresh, nutritious and seasonal food, homeliness and a sense of community which the Opponent’s customers could feel good about. Harvey states that a number of domain names were registered on 28 May 2021 and one on 5 July 2021.[8]
[7] Exhibit SH1 accompanying Harvey.
[8] Exhibit SH6 accompanying Harvey.
Harvey asserts that the Opponent has built a strong reputation in its food business under the Opponent’s Trade Mark since July 2021. However, there is limited evidence before me to support this assertion. The Applicant is also correct in pointing out that much of the Opponent’s evidence is dated after the Priority Date and cannot be used to establish a reputation in the Opponent’s Trade Mark at the Priority Date.
contains Wayback Machine screenshots of the Opponent’s website dated 29 March 2023 which lists the meals available from the Opponent. Exhibit SH7 accompanying Harvey contains further Wayback Machine screenshots from the Opponent’s website dated 22 May 2022 to 30 March 2023. All the screenshots demonstrate use of the Opponent’s Trade Mark.
Exhibit SH4 along with Harvey at paragraph [13] contain copies of six posts used by the Opponent to promote its range of products on Facebook®. I note that these posts are dated from 19 January 2023 until May 2023. The cumulative number of likes for these posts is 24 and there are no comments. Additional Facebook® posts are contained in exhibits SH8 to SH10 accompanying Harvey are dated before the Priority Date but also show limited engagement with Facebook users.

The Opponent states that it has opened three bricks and mortar stores in South Australia with the first being opened in August 2021, the second in May 2023 and the third in November 2023. I note that only two stores were open before the Priority Date and that the second store was open only one month before the Priority Date. The Opponent provides evidence in exhibit SH5 from the Government of South Australia’s Department for Infrastructure and Transport website showing traffic volumes for the Opponent’s first two stores. Given that the second store was only open for approximately one month before the Priority Date, traffic volume levels for this store are of limited value given the limited evidence of customer engagement and appreciation with the Opponent’s Trade Mark.
Confidential exhibit SH16 accompanying Harvey outlines the Opponent’s revenue from 2021 until 2024 and its advertising expenditure and the figures are moderate. While I note exhibit SH12 accompanying Harvey contains some articles concerning the Opponent dated from 21 September 2021, these articles demonstrate the limited geographic region for the Opponent’s Trade Mark exposure to the Australian marketplace.
I now must determine if the Opponent’s Trade Mark has acquired a reputation in Australia because of which the use of the Trade Mark would be likely to deceive or cause confusion. This is more than the Opponent merely indicating prior use, the Opponent’s trade mark needs to be ‘associated in the minds of the Australian public’[9] to such a degree that deception or confusion is likely.
[9] Seven Up Co v OT Ltd (1947) 75 CLR 203, 211 (Williams J).
The Opponent argued that reputation need not be Australia-wide and I agree.[10] In Gymbaroo[11], it was established for the purposes of s 60 that the impugned mark “Gymboree” was, at the time of its registration, deceptively similar to the mark GYMBAROO and, because of the reputation acquired by GYMBAROO, the use of “Gymboree” would have been likely to deceive or cause confusion in the areas in which GYMBAROO had acquired a reputation, namely Melbourne, Geelong and elsewhere in Victoria. However, the case before me is different to Gymbaroo.
[10] Hatton Holdings [2022] ATMO 28; 174 IPR 11, [40] (Blake Knowles)
[11] Toddler Kindy Gymbaroo Pty Ltd v Gymboree Pty Ltd [2000] FCA 618; (2000) 100 FCR 166, [26]–[31], [94] (Moore J) (‘Gymbaroo’).
The Opponent operated one bricks and mortar store selling pre-made meals in Adelaide for two years and opened a second store one month before the Priority Date. This is a short amount of time in order to establish such a reputation in the Opponent’s Trade Mark sufficient to trigger s 60. Particularly when this two year period is coupled with the modest expenditure on marketing and advertising before the Priority Date and the limited customer engagement that the Opponent has demonstrated on its social media accounts. While I am satisfied that the Opponent was growing as a business and developing its reputation, I am not satisfied from the evidence before me that the Opponent has demonstrated that at the Priority Date the Opponent’s Trade Mark has acquired such a reputation in Australia because of which the use of the Trade Mark on the Applicant’s Goods would be likely to deceive or cause confusion.
Additionally, the Applicant has also argued:
LOCAL KITCHEN is a well-known combination of English words. It is not a term invented or coined by the Opponent. They are words over which there is a common or public right of use in that they form part of the “common heritage”.
The use of descriptive words by the Opponent was no doubt convenient. It thereby adopted a name that very clearly described its activities.
I agree with the Applicant that the expression ‘Local Kitchen’ is descriptive given the common and easily understood meaning which may be attributed to it of a kitchen where food is prepared in the general or local area/neighborhood for the customer. I am reminded of Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd[12] where Justice Stephen said:
[t]here is a price to be paid for the advantages flowing from the possession of an eloquently descriptive trade name. Because it is descriptive it is equally applicable to any business of a like kind, its very descriptiveness ensure that it is not distinctive of any particular business and hence its application to other like business will not ordinarily mislead the public… quite small differences in a competitor’s trade name will render the latter immune from action…[13]
[12] (1978) 140 CLR 216, 229-230.
[13] With Barwick CJ and Jacobs and Aickin JJ concurring. See also, Energy Beverages LLC v Cantarella Bros Pty Ltd [2023] FCAFC 44, [167] (Yates, Stewart and Rofe JJ) where descriptive elements were relevant considerations for the court’s section 44 comparison.
The degree of distinctiveness of the element or elements shared by the parties’ respective trade marks under comparison, in this case the expression LOCAL KITCHEN, is limited. The likelihood of relevant deception or confusion is in my view very low. There are immediately obvious visual, aural and semantic differences between the parties’ trade marks when considered as wholes.
While I am satisfied that the Opponent was developing a reputation at the Priority Date, I am not satisfied that the Opponent had established such a reputation in the Opponent’s Trade Mark that s 60 would be triggered.
The Opponent has referred me to instances of confusion in the marketplace.[14] I note that these limited instances of confusion are from 2024 which is after the Priority Date. They indicate that the customers were looking for the Applicant and its goods rather than the Opponent.
[14] Exhibit SH19 accompanying Harvey [47].
As both parties have selected a somewhat descriptive expression in their trade marks in relation to their respective food goods, it is not surprising that there have been some limited instances of confusion given the parties are concurrently using their trade marks in the Australian marketplace. However, I am not satisfied that the Applicant’s use of its Trade Mark will result in any significant degree of confusion or deception in the marketplace. The Opponent has not established the s 60 ground of opposition.
Section 42(b) - Contrary to Law
Section 42 of the Act provides:
An application for the registration of a trade mark must be rejected if:
(a) the trade mark contains or consists of scandalous matter; or
(b) its use would be contrary to law.
Section 42(b) prevents registration of a trade mark that would be contrary to law.
The Opponent claims that use of the Trade Mark will breach ss 18 and/or 29 of the Australian Consumer Law (‘ACL’) being Schedule 2 to the Competition and Consumer Act 2010 (Cth), as well as constitute passing off.
Section 18 of the ACL concerns conduct or representations that have, or are likely to, mislead or deceive. Section 29 of the ACL concerns representations that are false or misleading. These are stricter requirements than s 60 which can be established if the use is likely to cause confusion or wonderment.[15]
[15] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 198 (Gibbs CJ); Monster Energy Company v Mixi Inc [2020] FCA 1398, [33] (Stewart J); Hasbro Inc v Imagination Holdings Pty Ltd (2005) 66 IPR 636; [2005] ATMO 43 (Hearing Officer Thompson).
As already noted in respect of s 60, I am not satisfied that the use of the Opponent’s Trade Mark in respect of the food goods and services is likely to deceive or cause confusion. It therefore follows that under the stricter test requirements of the ACL, I am not satisfied that use of the Trade Mark is likely to mislead or deceive or amount to a false or misleading representation.
Where a trade mark does not contravene s 18 of the ACL, it is unlikely to amount to passing off.[16] Justice Hill noted in Re Equity Access Pty Ltd v WestpacBanking Corporation[17]that:
The scope for the operation of s.52 will thus be broader than that involved in the tort of passing off so that in a case such as the present where the claim is for the protection of the reputation in a name against the use of that name by another, failure to succeed under s.52 or s.53 will invariably mean that proceedings for passing off would likewise fail.[18]
[16] Monster Energy v USA Nutraceuticals Inc [2017] ATMO 22, [58] (Hearing Officer R.Wilson).
[17] [1989] FCA 771.
[18] Ibid, [40].
Sections 52 and 53 of the Trade Practice Act 1974 (Cth)were the antecedents of ss 18 and 29 of the ACL. Given my findings in relation to ss 18 and 29 of the ACL, I am also satisfied that use of the Trade Mark would not constitute passing off.
For the above reasons, the ground of opposition under section 42(b) has not been established.
Decision
Section 55 of the Act provides:
55 Decision
(1) Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:
(a) to refuse to register the trade mark; or
(b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;
having regard to the extent (if any) to which any ground on which the application was opposed has been established.
Note: For limitations see section 6.
The Opponent has not established any grounds of opposition. The trade mark applications may accordingly proceed to registration one month from the date of this decision. If the Registrar has been served with notice of appeal before that time, I direct that registration of the Trade Marks shall not occur until the appeal has been decided or discontinued.
Costs
It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the Opponent under section 221 of the Act in terms of Schedule 8 of the Regulations.
Bianca Irgang
Hearing Officer
Oppositions and Hearings
Trade Marks and Designs
28 July 2025

Opposition by Local Kitchen Co Pty Ltd to registration of trade mark application numbers 2367277 (classes 29 and 30) –

[2025] ATMO 149

28 July 2025