Re: Opposition by Switch Superfoods Pty Ltd to registration of trade mark application no(s). 1859341 (5) Adrenal Switch 1859342 (5) Power Switch 1859343 (5) THERMAL Switch 1859344 (5) Amino Switch 1859345 (5)...

This matter concerns oppositions filed by Switch Superfoods Pty Ltd against ten trade mark applications by another party, seeking to register marks including "Adrenal Switch," "Power Switch," "THERMAL Switch," and "Amino Switch." The oppositions were heard by Hearing Officer Bianca Irgang. The core dispute revolved around whether the applicant's proposed trade marks were deceptively similar to the opponent's registered trade mark "SWITCH" for certain goods and services, and whether the goods and services were sufficiently similar or closely related to warrant rejection of the applications under section 44 of the *Trade Marks Act 1995* (Cth).

The primary legal issue before the Hearing Officer was to determine if the opponent had established a ground of opposition under section 44(1) of the Act. This required assessing whether the applicant's trade marks were substantially identical with or deceptively similar to the opponent's registered trade mark "SWITCH," and whether the goods and services specified in the applications were similar or closely related to those covered by the opponent's registration. The Hearing Officer also had to consider the priority dates of the respective trade marks.

In her reasoning, the Hearing Officer noted that the opponent's registered trade mark "SWITCH" had an earlier priority date than the applicant's ten trade mark applications. However, she found that while the applicant's marks related to nutritional supplements, which might contain seeds and nuts, the opponent's registered goods, such as edible seeds, nuts, and seaweed, were arguably available to a broader consumer base and were placed in a different marketplace. Crucially, the Hearing Officer emphasised that section 44 requires a comparison of the goods and services based on their actual registration or application, rather than the opponent's assertion that their goods were the same and sold through the same channels. Ultimately, the Hearing Officer concluded that the opponent had not established any grounds of opposition in relation to any of the ten trade mark applications.

Consequently, the Hearing Officer ordered that the ten trade mark applications were not refused and could proceed to registration one month from the date of the decision, unless appeals were filed. The Hearing Officer also awarded costs against the opponent in favour of the applicant, specifying the amounts for filing notices and evidence in answer, and a reduced amount for evidence in the remaining oppositions, due to the commonality of evidence across the matters.