Re: Opposition by Bega Cheese Limited to registration of trade mark application no(s). 1910618, 1910619 and 1910620 (29) - cartoon style figures in the name of Saputo Cheese USA Inc

This matter concerned an opposition by Bega Cheese Limited to three trade mark applications (nos. 1910618, 1910619, and 1910620) filed by Saputo Cheese USA Inc. The opposition was heard by Bianca Irgang, a Hearing Officer at the Trade Marks Hearings. The core of the dispute revolved around whether the applicant's proposed trade marks were deceptively similar to existing trade marks owned by Bega Cheese Limited, thereby preventing their registration.

The legal issues before the Hearing Officer included whether Bega Cheese Limited had successfully established any of the grounds of opposition it nominated, specifically those under sections 42(b), 44, 60, and 62A of the *Trade Marks Act 1995* (Cth). The onus was on Bega Cheese Limited to prove its case on the balance of probabilities, as affirmed by the Full Bench in *Telstra Corporation Limited v Phone Directories Company Pty Ltd*. A key focus was the determination of deceptive similarity under section 44, which requires the opponent to demonstrate the existence of a registered or pending trade mark with an earlier priority date, and that the applicant's mark is substantially identical or deceptively similar to it in relation to similar or closely related goods or services.

The Hearing Officer found that Bega Cheese Limited had met its onus in relation to the ground of opposition under section 44. While the opponent nominated several trade marks, the Hearing Officer specifically considered Trade Mark Registration no. 1121462 in relation to applicant's Trade Mark Application no. 1910619, finding them to be substantially identical. Given this finding, and that the opponent's trade marks had earlier priority dates and covered the same goods as the applicant's applications, the Hearing Officer concluded that the requirements of section 44 were satisfied. Consequently, the Hearing Officer decided to refuse the registration of all three trade mark applications. Bega Cheese Limited was awarded its costs in the proceedings.