Pink Energy Beverages Pty Ltd v Mr. Pink Collections, LLC

Pink Energy Beverages Pty Ltd (the applicant) sought to register the trade mark "PINK ENERGY" in class 32 for beverages. Mr. Pink Collections, LLC (the opponent) opposed this registration, relying on its prior registration of the trade mark "MR. PINK" in class 32 for beverages. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark "PINK ENERGY" was deceptively similar to the opponent's registered trade mark "MR. PINK" for the purposes of section 60 of the *Trade Marks Act 1995* (Cth). This involved an assessment of the likelihood of confusion or deception among consumers as to the origin of the goods.

Justice Wilson considered the visual, aural, and conceptual similarities between the two marks. He noted that while both marks contained the word "PINK", the addition of "ENERGY" to the applicant's mark and "MR." to the opponent's mark created significant differences. The Court found that the dominant and distinctive element of the opponent's mark was "MR. PINK", and the applicant's mark was "PINK ENERGY". Despite the shared word "PINK", the Court concluded that the marks, when considered as a whole, were not deceptively similar. The presence of "MR." in the opponent's mark and "ENERGY" in the applicant's mark, along with the overall distinctiveness of each mark, meant that consumers were unlikely to be confused into believing that the goods originated from the same source.

The Court ordered that the opposition be dismissed and that the applicant be entitled to proceed with the registration of its trade mark.