Re: Opposition by Jolita Pty Ltd to registration of trade mark application 1827003 (25) - Mummactiv (Figurative) in the name of Joanne Elizabeth Shepherd

This matter concerned an opposition by Jolita Pty Ltd (the Opponent) to the registration of trade mark application number 1827003, Mummactiv (Figurative), in the name of Joanne Elizabeth Shepherd (the Applicant). The Opponent, an Australian company selling clothing targeted at mothers, sought to oppose the registration on grounds including sections 44, 58A, and 60 of the *Trade Marks Act 1995* (Cth). The decision was made by Nicholas Smith, a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the grounds of opposition raised by the Opponent under sections 44, 58A, and 60 of the *Trade Marks Act 1995* had been established. Section 44 concerns the identity of trade marks and goods or services, section 58A relates to the use of a trade mark by a person other than the applicant, and section 60 addresses the use of a trade mark that has acquired a reputation in Australia. The delegate was required to determine whether the Applicant's trade mark should be refused registration or registered, having regard to the extent to which any of these grounds were proven.

The delegate found that the Opponent had failed to establish any of the grounds of opposition. In relation to section 60, the delegate concluded that even if the Opponent had a reputation, the Mummactiv trade mark and the Opponent's trade mark were too dissimilar to cause confusion. The delegate also found the Opponent's house mark, MAMMOJO, to be visually dissimilar and conceptually and aurally distinctive from the Applicant's trade mark. Consequently, the delegate determined that the opposition was unsuccessful.

The delegate ordered that trade mark application number 1827003 may proceed to registration not less than one month from the date of the decision, unless a notice of appeal was filed. The Applicant was awarded costs against the Opponent.