Re: Opposition by Monster Energy Company to registration of trade mark application number 1859892 (class 25) - STAY Shredded in the name of Peter Balthazar

This matter concerned an opposition by Monster Energy Company to the registration of the trade mark STAY Shredded (application number 1859892) in class 25, brought before Hearing Officer Jock McDonagh. The applicant, Peter Balthazar, sought to register the trade mark for gymwear and sportswear. The opposition was primarily based on grounds under sections 44 and 60 of the *Trade Marks Act 1995* (Cth).

The legal issues before the Hearing Officer included whether the applicant's proposed trade mark was deceptively similar to existing registered trade marks of the opponent under section 44, and whether the opponent's trade marks had acquired a reputation in Australia prior to the priority date of the application, such that the use of the applicant's mark would be likely to deceive or cause confusion under section 60.

The Hearing Officer found that the opponent had established a sufficient reputation in Australia for its trade marks, which prominently featured a distinctive 'Claw Icon', by the priority date of the application. Evidence of significant sales, extensive advertising and marketing expenditure across various media, and use in Australian publications and retail environments supported this finding. While not strictly necessary to prove deceptive similarity under section 60, the Hearing Officer noted that such similarity could be relevant to the likelihood of deception or confusion. Ultimately, the Hearing Officer determined that the opponent had successfully established a ground of opposition under section 60 of the Act.

Consequently, the Hearing Officer refused to register trade mark application number 1859892. The Hearing Officer also awarded costs to the opponent, as the successful party, on the official scale.