Opposition by Mars Australia Pty Ltd to registration of trade mark application no(s). 2026493 and 2026495 (29, 30, 31) – MM and MM Marquis stylized - in the name of Marquis Macadamias Ltd

This matter concerned opposition proceedings brought by Mars Australia Pty Ltd against two trade mark applications, no. 2026493 and no. 2026495, filed by Marquis Macadamias Ltd. The applications sought to register trade marks featuring the stylised letters "MM" and "MM Marquis". The proceedings were heard by Bianca Irgang, a Hearing Officer.

The legal issues before the Hearing Officer were whether the grounds of opposition raised by Mars Australia Pty Ltd, specifically under sections 42(b), 44, 60, and 62A of the *Trade Marks Act 1995* (Cth), had been established. The onus was on Mars Australia Pty Ltd to prove, on the balance of probabilities, that at least one ground of opposition was made out. The primary ground considered in detail was section 44, which concerns substantial identity or deceptive similarity to an earlier registered or pending trade mark for similar goods or services.

In relation to trade mark application no. 2026493, the Hearing Officer found that Mars Australia Pty Ltd had met its onus in establishing the ground of opposition under section 44. This finding was based on evidence that Mars Australia Pty Ltd owned earlier registered trade marks for similar goods, specifically chocolate confectionery products including chocolate-covered nut products, which were considered to be either substantially identical or deceptively similar to the applied-for mark. Consequently, registration of application no. 2026493 was refused. For trade mark application no. 2026495, however, the Hearing Officer found that Mars Australia Pty Ltd had not met its onus in establishing any of the grounds of opposition argued at the hearing. Accordingly, application no. 2026495 was permitted to proceed to registration, subject to any appeal. Each party was directed to bear its own costs, given the mixed success in the opposition proceedings.