Re: Opposition by CapBran Holdings, LLC to registration of trade mark application no. 1722991 (7) - NUTRIBLITZ in the name of Uncle Bills (Australia) Pty Ltd

This matter concerned an opposition by CapBran Holdings, LLC (the opponent) to the registration of trade mark application no. 1722991, NUTRIBLITZ, in the name of Uncle Bills (Australia) Pty Ltd (the applicant). The opposition was heard by Bianca Irgang, Hearing Officer.

The primary legal issue before the Hearing Officer was whether the opponent had established a ground for opposition under section 60 of the *Trade Marks Act 1995* (Cth). This required determining if the opponent's trade mark, NUTRI BULLET, had acquired a reputation in Australia prior to the priority date of the applicant's application (21 September 2015), and if, due to that reputation, the use of the applicant's mark NUTRIBLITZ would be likely to deceive or cause confusion among the relevant public. The goods in question, blenders, were not disputed between the parties.

The Hearing Officer applied the principles established in *Registrar of Trade Marks v Woolworths*, which state that confusion is likely if a significant number of persons are caused to wonder whether the products come from the same source, and that all surrounding circumstances, including the nature of the goods, the market, and the potential use of the mark, must be considered. The Hearing Officer found that the opponent had met the onus of proving the ground of opposition under section 60.

Consequently, the Hearing Officer ordered that trade mark application no. 1722991 be refused registration and awarded costs against the applicant.