Re: Opposition by Switch Superfoods Pty Ltd to registration of trade mark application no. 1830098 (5) KETO Switch in the name of Haglund Holdings Pty Ltd

This matter concerned an opposition by Switch Superfoods Pty Ltd to the registration of the trade mark application no. 1830098, "KETO Switch", in the name of Haglund Holdings Pty Ltd. The opposition was brought under section 44 of the *Trade Marks Act 1995* (Cth), which deals with deceptively similar trade marks. The opponent, Switch Superfoods Pty Ltd, relied on its registered trade mark "SWITCH" (registration no. 1570378) for goods in Class 29 and services in Class 35.

The primary legal issue before the Hearing Officer was whether the applicant's trade mark "KETO Switch" was substantially identical with, or deceptively similar to, the opponent's registered trade mark "SWITCH" in respect of similar goods or closely related services, and whether the opponent's trade mark had an earlier priority date. To succeed under section 44(1), the opponent was required to establish all these elements.

The Hearing Officer found that the opponent's trade mark "SWITCH" had an earlier priority date than the applicant's trade mark "KETO Switch". However, applying the "side-by-side" test, the Hearing Officer determined that the applicant's trade mark was not substantially identical to the opponent's trade mark. The decision does not elaborate on the assessment of deceptive similarity beyond this finding. As the opponent failed to establish that the trade marks were substantially identical or deceptively similar, no grounds of opposition were established under section 44.

Consequently, the Hearing Officer decided to register the trade mark application no. 1830098, subject to a stay of registration for one month to allow for any potential appeal. Costs were awarded against the opponent in accordance with the usual practice.