Re: Opposition by The Stralia Group Pty Ltd to registration of trade mark application number 1869395 (32) AweAUSTRALIA Enjoy The Pure Taste of Awesome in the name of Roger Alan Roberts Loose

This decision concerns an opposition filed by The Stralia Group Pty Ltd (the Opponent) against the registration of trade mark application number 1869395, "AweAUSTRALIA Enjoy The Pure Taste of Awesome," in the name of Roger Alan Roberts Loose (the Applicant). The application sought registration in Class 32 for various water-based beverages and alcohol-free drinks. The matter was heard by a delegate of the Registrar of Trade Marks.

The primary legal issues before the delegate were whether the Applicant's trade mark should be refused registration under section 44 of the *Trade Marks Act 1995* (Cth) due to substantial identity or deceptive similarity to an earlier registered trade mark owned by the Opponent, and alternatively, under section 58 of the Act. The Opponent bore the onus of proving these grounds on the balance of probabilities, with the relevant date for comparison being 29 August 2017.

The delegate found that the Opponent's registered trade mark, "STRALIA," in Classes 3, 32, and 33, had an earlier priority date and covered goods in Class 32 that were identical or similar to those sought by the Applicant. While the delegate determined that the marks were not substantially identical, they concluded that the Applicant's trade mark was deceptively similar to the Opponent's mark. This conclusion was based on the assessment that consumers of ordinary intelligence and memory would likely retain a general impression of "Stralia" from the Applicant's mark, particularly given the emphasis on that word within the mark and the nature of the goods as inexpensive, fast-moving consumer items often purchased quickly. The delegate also considered that the threshold for confusion was not high and that confusion could arise even if the marks were readily distinguishable, by leading consumers to wonder if the goods came from the same source. The delegate found no basis to apply exceptions under section 44(3) or (4) of the Act.

As the Opponent had established the ground of opposition under section 44, the delegate refused to register trade mark application number 1869395. Costs were awarded against the Applicant according to the official scale.